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EXHIBIT 18
AGREEMENT AND PLAN OF MERGER
among
RCPI HOLDINGS INC.,
RCPI MERGER INC.,
the INVESTORS LISTED HEREIN
and
ROCKEFELLER CENTER PROPERTIES, INC.
Dated as of November 7, 1995
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TABLE OF CONTENTS
Page
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ARTICLE 1 THE MERGER.............................................. 2
Section 1.1 The Merger..................................... 2
Section 1.2 Closing........................................ 2
Section 1.3 Effective Time................................. 3
Section 1.4 Certificate of Incorporation and By-laws....... 3
Section 1.5 Directors and Officers......................... 3
ARTICLE 2 EFFECT OF THE MERGER ON THECAPITAL STOCK OF RCPI AND SUB;
PAYMENT FOR SHARES...................................... 4
Section 2.1 Effect on Capital Stock........................ 3
(a) Conversion of Shares of Common Stock........... 4
(b) Cancellation of Common Stock Owned by RCPI,
Parent and Sub................................. 4
(c) Conversion of Shares of Sub Common Stock....... 4
Section 2.2 Payment for Common Stock....................... 4
(a) Exchange Agent................................. 4
(b) Payment Procedures............................. 4
(c) Further Ownership Rights in Common Stock....... 6
(d) Termination of Exchange Fund................... 6
(e) No Liability................................... 6
Section 2.3 Dissenting Shares.............................. 6
Section 2.4 Treatment of Warrants and SARs................. 7
ARTICLE 3 REPRESENTATIONS AND WARRANTIES.......................... 7
Section 3.1 Representations and Warranties of RCPI......... 7
(a) Organization, Standing and Corporate Power..... 7
(b) Capitalization................................. 7
(c) SEC Documents; Financial Statements;
Liabilities; Etc............................... 8
(d) Authority..................................... 10
(e) Compliance with Applicable Laws............... 11
(f) Government Approvals; Required Consents....... 11
(g) Non-Contravention............................. 12
(h) Litigation.................................... 12
(i) Taxes and Related Tax Matters................. 13
(j) Certain Agreements............................ 14
(k) Employee Benefits............................. 15
(l) The "Rockefeller Center" Name................. 16
(m) Contracts..................................... 16
(n) Absence of Certain Changes or Events.......... 16
(o) Recommendation of Board of Directors; Vote
Required...................................... 17
(p) Opinion of Financial Advisor.................. 18
(q) Accuracy of Information Supplied.............. 18
(r) Proxy Statement............................... 18
(s) Brokers or Finders............................ 19
(t) Government Regulation......................... 19
(u) No Pending Condemnation or Eminent Domain..... 19
(v) Subordination of Certain Leases............... 20
(w) No Insolvency Proceeding...................... 20
(x) Insurance..................................... 20
Section 3.2 Representations and Warranties of Parent, Sub,
Investors and GSMC............................ 21
(a) Organization, Standing and Corporate Power.... 21
(b) Authority..................................... 21
(c) Government Approvals; Required Consents....... 22
(d) Non-Contravention............................. 22
(e) Financing..................................... 23
(f) Proxy Statement............................... 23
(g) Brokers or Finders............................ 23
(h) No Agreement.................................. 23
ARTICLE 4 COVENANTS.............................................. 24
Section 4.1 Mutual Covenants of RCPI, Parent, Sub, GSMC and
Each Investor................................. 24
(a) Satisfaction of Conditions; Additional
Agreements.................................... 24
(b) Confidentiality............................... 24
(c) Publicity..................................... 25
(d) Advice of Breach.............................. 25
Section 4.2 Covenants of RCPI............................. 25
(a) Access to Information and Facilities.......... 26
(b) Ordinary Course............................... 26
(c) Stockholders' Meeting; Fiduciary Duties....... 30
(d) Preparation of the Proxy Statement............ 31
(e) Exclusivity................................... 32
(f) New Leases; Approval Rights................... 32
(g) Notice of Default............................. 33
(h) Bankruptcy Cases.............................. 33
(i) Prepayment of ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Loans;
Termination of ▇▇▇▇ Agreements................ 35
(j) Release....................................... 35
Section 4.3 Covenants of the Investors.................... 35
(a) Releases...................................... 35
(b) Investor Commitments.......................... 35
Section 4.4 Covenants of GSMC and Whitehall............... 36
(a) GS Board Nominee.............................. 36
(b) GSMC Loans.................................... 36
(c) No Exercise of SARs........................... 37
ARTICLE 5 CONDITIONS PRECEDENT................................... 37
Section 5.1 Conditions to the Obligations of Parent, Sub,
the Investors and RCPI to Effect the Merger... 37
(a) Stockholder Approval.......................... 37
(b) No Injunctions or Restraints.................. 37
(c) HSR Act....................................... 38
(d) Governmental Approvals........................ 38
(e) Required Consents............................. 38
Section 5.2 Conditions to the Obligations of Parent, Sub
and the Investors............................. 38
(a) Accuracy of Representations and Warranties.... 38
(b) Performance of Agreements..................... 39
(c) No Material Adverse Change.................... 39
(d) Liabilities of RCPI........................... 39
(e) Satisfactory Chapter 11 Plan.................. 40
(f) Termination of ▇▇▇▇ Agreements................ 40
(g) Condition of the Property..................... 40
(h) Environmental Matters......................... 41
(i) Conveyance of Property........................ 41
(j) No Taxes...................................... 42
(k) Employee Benefits............................. 42
Section 5.3 Conditions to the Obligations of RCPI......... 43
(a) Accuracy of Representations and Warranties.... 43
(b) Performance of Agreements..................... 43
ARTICLE 6 TERMINATION............................................ 43
Section 6.1 Termination................................... 43
Section 6.2 Effect of Termination......................... 45
ARTICLE 7 GENERAL PROVISIONS..................................... 46
Section 7.1 Certain Definitions........................... 46
Section 7.2 Notices....................................... 54
Section 7.3 Interpretation................................ 57
Section 7.4 Waivers and Amendments........................ 57
Section 7.5 Expenses and Other Payments................... 58
Section 7.6 Assignment.................................... 59
Section 7.7 Directors' and Officers' Insurance; Indemnity. 59
Section 7.8 Non-Survival of Representations and Warranties 61
Section 7.9 Entire Agreement; No Third Party Beneficiaries 61
Section 7.10 Governing Law................................. 61
Section 7.11 Counterparts.................................. 62
EXHIBITS AND SCHEDULES
Schedule A Cash Flow Requirements
Schedule B Maximum Permitted RCPI Liabilities
Attachment 1 - Other Liabilities
Exhibit A Form of Certificate of Incorporation
Exhibit B Form of Release
Exhibit C Investor Commitments
RCPI Disclosure Schedule
Section 3.1(b)(ii) Capitalization
Section 3.1(c)(iii) Leases with Nondisturbance
Agreements
Section 3.1(c)(v) Subsidiaries
Section 3.1(e) Investigation and Reviews by
Governmental Entities
Section 3.1(f)(i) RCPI Governmental Approvals
Section 3.1(f)(ii) RCPI Required Consents
Section 3.1(h) Litigation
Section 3.1(i)(ii) Taxes and Related Tax Matters
Section 3.1(j) Certain Agreements
Section 3.1(k) Employee Benefits
Section 3.1(m) Contracts
Section 3.1(n) Absence of Certain Changes or
Events
Section 3.1(x) Insurance
Section 4.2(b)(C) Bonuses, Etc.
Section 4.2(b)(K) Waivers, Etc.
Section 5.2(h) Environmental Matters
P&S Disclosure Schedule
Section 3.2(c)(i) Government Approvals; Required
Consents
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of November 7, 1995,
among ROCKEFELLER CENTER PROPERTIES, INC., a Delaware corporation ("RCPI"),
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP V, a Delaware limited
partnership ("Whitehall"), ROCKPROP, L.L.C., a Delaware limited liability
company ("Rockprop"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇"), EXOR GROUP S.A., a
Luxembourg investment holding company ("Exor"), TROUTLET INVESTMENTS
CORPORATION, a British Virgin Islands private company ("Troutlet"), RCPI
HOLDINGS INC., a Delaware corporation ("Parent"), RCPI MERGER INC., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"). Whitehall,
Rockprop, Rockefeller, Exor and Troutlet are sometimes referred to herein
collectively as the "Investors" and individually as an "Investor."
(Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed thereto in Section 7.1.)
WHEREAS, RCPI owns a $1.3 billion loan secured by a mortgage
on property in New York, New York, commonly known as "Rockefeller Center,"
which is owned by Rockefeller Center Properties ("RCP") and RCP Associates
("RCPA" and together with RCP, the "Borrower"), each a New York partnership
under the control of Rockefeller Group, Inc., a New York corporation ("RGI");
WHEREAS, the Borrower has filed for protection under Chapter
11 of the Bankruptcy Code in proceedings (the "Borrower's Chapter 11 Case")
pending in the United States Bankruptcy Court for the Southern District of New
York (Case Nos. 95B42088 and 95B42089), has stopped making payments under the
1985 Loan Agreement and is consequently in default thereunder;
WHEREAS, the Board of Directors of RCPI has determined
that the merger of Sub with and into RCPI (the "Merger") on the terms and
subject to the conditions set forth in this Agreement would be fair to, and
in the best interests of, RCPI's stockholders, and the Board of Directors
of RCPI has approved and adopted this Agreement and has approved the Merger
and the other transactions contemplated hereby;
WHEREAS, the Board of Directors of each of Parent and Sub
has determined that the Merger on the terms and subject to the conditions set
forth in this Agreement would be fair to, and in the best interests of, its
stockholders, and the Board of Directors of each of Parent and Sub has
approved and adopted this Agreement and has approved the Merger and the other
transactions contemplated hereby; and
WHEREAS, each of RCPI, the Investors, Parent and Sub wish to
make certain representations, warranties and agreements in connection with the
Merger and to prescribe various conditions to the Merger.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 The Merger. Upon the terms and subject to
the conditions set forth in this Agreement, and in accordance with the
Delaware General Corporation Law (the "DGCL"), Sub shall be merged with and
into RCPI at the Effective Time. Upon and after the Effective Time, the
separate corporate existence of Sub shall cease and RCPI shall be the
surviving corporation in the Merger (the "Surviving Company"). In
accordance with the DGCL, all of the rights, privileges, powers,
immunities, purposes and franchises of RCPI and Sub shall vest in the
Surviving Company, and all of the debts, liabilities, obligations and
duties of RCPI and Sub shall become the debts, liabilities, obligations and
duties of the Surviving Company.
Section 1.2 Closing. The closing of the Merger (the
"Closing") will take place at the offices of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ in New York City at 10:00 a.m. on the fifth Business Day following
the date on which the conditions set forth in Article 5 (other than the
delivery of the certificates of RCPI and Parent referred to therein) have been
satisfied or waived by the party entitled to the benefit of such conditions,
or at such other place, time and date as Parent and RCPI may agree. The date
on which the Closing occurs is referred to herein as the "Closing Date."
Section 1.3 Effective Time. On the Closing Date (or on
such other date as Parent and RCPI may agree), Parent, Sub and RCPI shall
cause a Certificate of Merger (the "Certificate of Merger") to be executed and
filed with the Secretary of State of the State of Delaware in accordance with
the relevant provisions of the DGCL and shall make all other filings or
recordings required under the DGCL. The Merger shall become effective at such
time as the Certificate of Merger is duly filed with the Secretary of State of
the State of Delaware, or at such later time as is specified in the
Certificate of Merger (the "Effective Time").
Section 1.4 Certificate of Incorporation and By-laws.
The Restated Certificate of Incorporation of RCPI shall be amended and
restated as of the Effective Time (or, at the election of Parent,
immediately following the Effective Time Parent shall amend and restate the
Restated Certificate of Incorporation) to be substantially in the form
attached hereto as Exhibit A and as so amended and restated shall be the
Certificate of Incorporation of the Surviving Company until thereafter
changed or amended as provided therein or by applicable Law. The By-laws
of Sub at the Effective Time shall be the By-laws of the Surviving Company
until thereafter changed or amended as provided therein or by applicable
Law.
Section 1.5 Directors and Officers. The directors and
officers of Sub at the Effective Time shall be the directors and officers of
the Surviving Company and shall hold office until their respective successors
are duly elected or appointed and qualified or until their earlier death,
resignation or removal in accordance with the Certificate of Incorporation and
By-laws of the Surviving Company.
ARTICLE 2
EFFECT OF THE MERGER ON THE
CAPITAL STOCK OF RCPI AND SUB; PAYMENT FOR SHARES
Section 2.1 Effect on Capital Stock. At the Effective
Time, by virtue of the Merger and without any action on the part of the
holder of any shares of common stock, par value $.01 per share, of RCPI
("Common Stock") or the holder of any shares of common stock, par value
$.01 per share, of Sub ("Sub Common Stock"):
(a) Conversion of Shares of Common Stock. Each issued
and outstanding share of Common Stock (other than (i) shares of Common Stock
held by RCPI or any of its Subsidiaries as treasury shares, (ii) any shares of
Common Stock held by Parent or any of its Subsidiaries (including Sub) and
(iii) any Dissenting Shares (as defined below)) shall be converted into the
right to receive $8.00 per share net in cash (the "Merger Consideration"),
payable to the holder thereof upon surrender of the certificate formerly
representing such shares in accordance with Section 2.2, without interest
thereon, less any required withholding taxes. Each such share of Common Stock
shall cease to be outstanding and shall automatically be canceled and retired
and shall cease to exist, and each holder of a certificate formerly
representing any such shares of Common Stock shall cease to have any rights
with respect thereto, except the right to receive the Merger Consideration to
be paid in consideration therefor upon surrender of such certificate in
accordance with Section 2.2, without interest thereon, less any required
withholding taxes.
(b) Cancellation of Common Stock Owned by RCPI, Parent
and Sub. Each share of Common Stock that is owned by, or by any Subsidiary
of, RCPI or by Parent or any Subsidiary of Parent (including Sub) shall
automatically be canceled and retired and shall cease to exist, and no
consideration shall be delivered in exchange therefor.
(c) Conversion of Shares of Sub Common Stock. Each
share of Sub Common Stock issued and outstanding immediately prior to the
Effective Time shall be converted into and become one validly issued, fully
paid and nonassessable share of common stock, par value $.01 per share, of the
Surviving Company.
Section 2.2 Payment for Common Stock.
(a) Exchange Agent. Prior to the Effective Time,
Parent shall designate a bank or trust company reasonably acceptable to RCPI
to act as exchange agent in the Merger (the "Exchange Agent"). At or prior to
the Effective Time, Parent or Sub shall deposit with the Exchange Agent the
funds necessary to make the payments contemplated by Section 2.1(a) hereof
(the "Exchange Fund").
(b) Payment Procedures. As soon as reasonably
practicable after the Effective Time, the Surviving Company shall instruct
the Exchange Agent to mail to each holder of record of a certificate or
certificates that immediately prior to the Effective Time represented
outstanding shares of Common Stock (collectively, the "Certificates") whose
shares were converted into the right to receive the Merger Consideration
pursuant to Section 2.1(a), (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent and shall be in such form and have such other provisions as
the Surviving Company may reasonably specify) and (ii) instructions for use
in effecting the surrender of the Certificates in exchange for payment of
the Merger Consideration. Upon surrender of a Certificate for cancellation
to the Exchange Agent, together with such letter of transmittal, duly
executed, and such other documents as reasonably may be required by the
Exchange Agent, and acceptance thereof by the Exchange Agent, each holder
of a Certificate shall receive in exchange therefor the Merger
Consideration specified in Section 2.1(a) hereof, without interest thereon,
less any required withholding taxes, and the Certificate so surrendered
shall forthwith be canceled. The Exchange Agent shall accept such
Certificates upon compliance with such reasonable terms and conditions as
the Exchange Agent may impose to effect an orderly exchange thereof in
accordance with normal exchange practices. After the Effective Time, there
shall be no further transfer on the books and records of RCPI or its
transfer agent of Certificates, and if Certificates are presented to RCPI
for transfer, they shall be canceled against payment of the Merger
Consideration as herein provided. If any payment of Merger Consideration
is to be made to a Person other than the Person in whose name the
Certificate surrendered for exchange is registered, it shall be a condition
of such payment that the Certificate so surrendered shall be properly
endorsed, with the signature guaranteed, or otherwise in proper form for
transfer and that the Person requesting such payment shall pay any transfer
or other taxes required by reason of the payment to a Person other than the
registered holder of the Certificate surrendered, or establish to the
satisfaction of the Surviving Company that such tax has been paid or is not
applicable. Until surrendered as contemplated by this Section 2.2, each
Certificate shall be deemed at any time after the Effective Time to
represent only the right to receive upon such surrender the Merger
Consideration, without interest thereon, less any required withholding
taxes.
(c) Further Ownership Rights in Common Stock. The
Merger Consideration paid upon the surrender for exchange of Certificates
in accordance with the terms of this Article 2 shall be deemed to have been
paid in full satisfaction of all rights pertaining to the shares of Common
Stock theretofore represented by such Certificates. If, after the
Effective Time, Certificates are presented to the Surviving Company or the
Exchange Agent for any reason, they shall be canceled and exchanged as
provided in this Article 2.
(d) Termination of Exchange Fund. Any portion of the
Exchange Fund that remains undistributed to the former stockholders of RCPI
for six months after the Effective Time shall be delivered to the Surviving
Company upon demand, and any former stockholders of RCPI who have not
theretofore complied with this Article 2 shall thereafter look only to the
Surviving Company for payment of their claim for any Merger Consideration,
without interest thereon, less any required withholding taxes.
(e) No Liability. None of Parent, Sub, RCPI or the
Exchange Agent shall be liable to any Person in respect of any Merger
Consideration delivered to a public official pursuant to any applicable
abandoned property, escheat or similar law.
Section 2.3 Dissenting Shares. Notwithstanding anything in
this Agreement to the contrary, shares of Common Stock outstanding immediately
prior to the Effective Time held by a holder (if any) who is entitled to
demand, and who properly demands, appraisal for such shares in accordance with
Section 262 of the DGCL ("Dissenting Shares") shall not be converted into the
right to receive the Merger Consideration unless such holder fails to perfect
or otherwise loses such holder's right to appraisal, if any. If, after the
Effective Time, such holder fails to perfect or loses any such right to
appraisal, such shares shall be treated as if they had been converted as of
the Effective Time into the right to receive the Merger Consideration, without
interest thereon, less any required withholding taxes. RCPI shall give prompt
notice to Parent of any demands received by RCPI for appraisal of shares of
Common Stock, and Parent shall have the right to participate in and direct all
negotiations and proceedings with respect to such demands. Except with the
prior written consent of Parent, RCPI shall not make any payment with respect
to, or settle or offer to settle, any such demands.
Section 2.4 Treatment of Warrants and SARs.
As of the Effective Time, each Warrant and SAR issued and
outstanding immediately prior to the Effective Time shall automatically be
canceled and retired and shall cease to exist, and no consideration shall be
delivered in exchange therefor.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of RCPI. RCPI
represents and warrants to each of the Investors, Parent and Sub as
follows:
(a) Organization, Standing and Corporate Power. Each
of RCPI and each of its Subsidiaries is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization with all
requisite power and authority to engage in its business as currently conducted
and to own the assets and properties currently owned by it. Each of RCPI and
each of its Subsidiaries is licensed or qualified to do business and is in
good standing as a foreign corporation in each jurisdiction in which such
qualification is necessary or advisable for the carrying out of its business.
True, correct and complete copies of the certificate of incorporation and
by-laws of each of RCPI and each of its Subsidiaries as in effect on the date
hereof, and all minutes of all meetings (or written consents in lieu of
meetings) of the Board of Directors (and all committees thereof) and
stockholders of RCPI shall have been made available to Parent on or prior to
the Closing.
(b) Capitalization.
(i) The authorized capital stock of RCPI
consists of 150,000,000 shares of Common Stock, par value $.01 per share,
38,260,704 of which are currently issued and outstanding. All of such
shares of Common Stock (A) are validly issued, fully paid and nonassessable
and (B) are free of preemptive rights. There are no shares of capital
stock of RCPI held in the treasury of RCPI, and except in respect of the
outstanding Warrants and SARs, RCPI's Dividend Reinvestment Plan and the
RCPI Indenture, no shares of capital stock of RCPI are currently reserved
for issuance for any purpose or upon the occurrence of any event or
condition.
(ii) Except as set forth on Section 3.1(b)(ii)
of the RCPI Disclosure Schedule, no shares of capital stock or other equity
securities of RCPI are issued or outstanding or reserved for any other
purpose, and there are no subscriptions, options, warrants, calls, rights,
convertible securities or other agreements or commitments of any character
to which RCPI is a party relating to the issued or unissued capital stock
or other equity securities or ownership interests of RCPI (or the purchase,
sale, issuance, repurchase, redemption, acquisition, transfer, disposition,
holding or voting thereof).
(iii) Except as provided in Article ELEVENTH of the
Restated Certificate of Incorporation of RCPI, RCPI has no outstanding bonds,
debentures, notes or other obligations whose holders have the right to vote
with the holders of Common Stock on any matter.
(c) SEC Documents; Financial Statements; Liabilities;
Etc.
(i) RCPI has made available to Parent a true and
complete copy of each form, report, schedule, registration statement and
definitive proxy statement filed by RCPI with the SEC since January 1, 1992
(as such documents have since the time of their filing been amended or
supplemented, the "RCPI SEC Documents"), which are all the documents (other
than preliminary material) that RCPI was required to file with the SEC since
such date. As of their respective dates, the RCPI SEC Documents (other than
preliminary material) complied in all material respects with the requirements
of the Securities Act or the Exchange Act, as applicable, and none of the RCPI
SEC Documents (including all financial statements included therein and
exhibits and schedules thereto and documents incorporated by reference
therein) contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(ii) The financial statements (including the
notes thereto) of RCPI included in the RCPI SEC Documents comply as to form in
all material respects with the applicable accounting requirements and with the
rules and regulations of the SEC with respect thereto, have been prepared in
accordance with GAAP consistently applied (except as may be indicated in the
notes thereto) and present fairly in accordance with GAAP the financial
position of RCPI as of the dates thereof and the results of operations and
cash flows of RCPI for the periods then ended (subject, in the case of
unaudited financial statements, to normal year-end adjustments).
(iii) RCPI has good title to all of its real
property and material assets, including, without limitation, the Mortgage
Note and the Mortgage, free and clear of all Liens (other than Permitted
Liens and the restrictions on transfer contained in the 1985 Loan
Agreement). RCPI has not granted to any Person (other than any holder of a
Permitted Lien) any rights, recorded or unrecorded, in the Mortgage or the
Mortgage Note. To RCPI's knowledge, no Person, other than RCPI or any
holder of a Permitted Lien, has any right or option, recorded or
unrecorded, to acquire the Property or any portion thereof or interest
therein (except for (x) presently existing rights to renew leases and to
lease additional space and (y) rights to renew leases and to lease
additional space under leases entered into in accordance with the terms of
this Agreement after the date hereof). Section 3.1(c)(iii) of the RCPI
Disclosure Schedule sets forth or describes, as of the date hereof, each
lease for space in the Property in respect of which RCPI has entered into a
nondisturbance agreement, and RCPI has made available to Parent all such
nondisturbance agreements. The Mortgage is a valid lien on all the
Property and on the Lessor's interest in all Leases (each as defined in the
Mortgage), with a priority in all material respects no less than its
priority as of September 19, 1985, except for any Permitted Liens and as
such priority may be affected by the subordination referred to in Clause
(ii) of Recital G to the Amendment and Restatement of the Mortgage, dated
as of December 1, 1988, and the execution and delivery of Leases (as so
defined) after the date of recordation of the Assignment of Rents. Except
for breaches and defaults described on Section 3.1(c)(iii) of the RCPI
Disclosure Schedule, to the knowledge of RCPI, no Person has materially
breached any term of the Mortgage or the Mortgage Note, and no circumstance
exists that constitutes (with or without notice or lapse of time or both) a
default under the Mortgage or the Mortgage Note. The outstanding aggregate
principal amount of the Mortgage Note is $1,300,000,000.
(iv) RCPI is the beneficiary under the Title
Insurance and, subject to the Collateral Trust Agreement, has the right to
assign its rights under the Title Insurance as provided for therein.
(v) Except as set forth on Section 3.1(c)(v)
of the RCPI Disclosure Schedule, RCPI does not have (nor has it ever had) any
direct or indirect Subsidiaries, either wholly or partially owned, and RCPI
does not hold any direct or indirect economic, voting or management interest
in any Person or directly or indirectly own any security issued by any Person.
(vi) Other than (A) the Combination Agreement
and (B) nondisturbance agreements with respect to the leases set forth or
described on Section 3.1(c)(iii) of the RCPI Disclosure Schedule and
nondisturbance agreements in form reasonably satisfactory to Parent with
respect to leases entered into in accordance with the terms of this Agreement
after the date hereof, RCPI has never been a party to a merger or
consolidation and has not otherwise assumed or become liable for the
obligations of any other Person.
(d) Authority. RCPI has all requisite corporate power
and authority to enter into this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby, subject in
the case of the Merger, to the approval of this Agreement by the stockholders
of RCPI in accordance with the DGCL. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action on the part
of RCPI, and no other corporate proceedings on the part of RCPI are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby, subject in the case of the Merger, to the approval of this Agreement
by the stockholders of RCPI and the filing of the Certificate of Merger with
the Secretary of State of the State of Delaware in accordance with the DGCL.
This Agreement has been duly and validly executed and delivered by RCPI and
constitutes a valid and binding obligation of RCPI enforceable against RCPI in
accordance with its terms, subject in the case of the Merger, to the approval
of this Agreement by the stockholders of RCPI in accordance with the DGCL, and
except as such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization or similar laws
affecting the enforcement of creditors' rights generally and by equitable
limitations on the availability of specific remedies.
(e) Compliance with Applicable Laws. Each of RCPI and
each of its Subsidiaries holds all material permits, licenses, variances,
exemptions, orders and approvals of all Governmental Entities required in
connection with the operation of the businesses of RCPI and its Subsidiaries
(the "RCPI Permits"); RCPI and its Subsidiaries are in material compliance
with the terms of all RCPI Permits; and, except as RCPI has previously
disclosed in writing to Parent, the businesses of RCPI and its Subsidiaries
are not being conducted in violation of any Law in any material respect. As
of the date of this Agreement, except as set forth on Section 3.1(e) of the
RCPI Disclosure Schedule, no investigation or review by any Governmental
Entity with respect to RCPI or any of its Subsidiaries is pending or, to the
knowledge of RCPI, threatened, nor to the knowledge of RCPI, has any
Governmental Entity indicated an intention to conduct the same.
(f) Government Approvals; Required Consents.
(i) No material consent, approval or
authorization of, or declaration or filing with, or notice to, any
Governmental Entity on the part of RCPI is required in connection with the
execution or delivery by RCPI of this Agreement, the consummation by RCPI of
the transactions contemplated hereby or compliance by RCPI with the provisions
hereof, other than (A) the filing of the Certificate of Merger with the
Secretary of State of the State of Delaware in accordance with the DGCL, (B)
filings with the SEC and any applicable national securities exchange, (C)
filings under state securities or "Blue Sky" laws, (D) filings under the HSR
Act and (E) as otherwise set forth on Section 3.1(f)(i) of the RCPI Disclosure
Schedule (any such consents, approvals, authorizations, declarations, filings
or notices specified in clauses (A) through (E) being referred to as the "RCPI
Governmental Approvals").
(ii) No consent, approval or action of, or
filing with, or notice to, any Person (other than a Governmental Entity) is
required in connection with the execution or delivery by RCPI of this
Agreement, consummation by RCPI of the transactions contemplated hereby or
compliance by RCPI with the provisions hereof, other than (A) the approval of
this Agreement by the holders of the Common Stock in accordance with the DGCL,
(B) as set forth on Section 3.1(f)(ii) of the RCPI Disclosure Schedule and (C)
any consent, approval, action, filing or notice that if not obtained or made
would not, individually and in the aggregate, have a Material Adverse Effect
on RCPI (any such consents, approvals, actions, filings or notices specified
in clauses (A) and (B) being referred to as the "RCPI Required Consents").
(g) Non-Contravention. The execution and delivery of
this Agreement by RCPI do not, and the consummation of the transactions
contemplated hereby and compliance by RCPI with the provisions hereof will
not, (i) conflict with or result in any violation of any provision of the
Restated Certificate of Incorporation or By-laws of RCPI; (ii) if the RCPI
Required Consents are obtained or given, as the case may be, result in any
violation or breach of, or result in a modification of the effect of, or
constitute (with or without notice or lapse of time or both) a default
under or give rise to any right of termination, cancellation or
acceleration under any material Contract to which RCPI is a party or by or
to which it or any of its properties may be bound or subject, or result in
the creation of any Lien upon the properties of RCPI, in each case pursuant
to the terms of any such Contract; (iii) if the RCPI Governmental
Approvals are obtained, result in any violation of any Law applicable to
RCPI in any material respect; or (iv) if the RCPI Governmental Approvals
and the RCPI Required Consents are obtained or given, as the case may be,
result in the violation, revocation or suspension of any RCPI Permit.
(h) Litigation. Except as set forth on Section 3.1(h)
of the RCPI Disclosure Schedule and except for Permitted Litigations, there
are no actions, suits, arbitrations, regulatory proceedings or other
litigation, proceedings or governmental investigations pending or, to the
knowledge of RCPI, threatened against or affecting RCPI or any of its Agents
in their capacity as such, or any of RCPI's properties or businesses. RCPI is
not subject to any order, judgment, decree, injunction, stipulation or consent
order specifically naming RCPI of any court or other Governmental Entity.
RCPI has not entered into any agreement to settle or compromise any proceeding
pending or threatened against it that has involved any obligation other than
the payment of money or for which RCPI has any continuing obligation.
(i) Taxes and Related Tax Matters.
(i) For all taxable years from and after the
year in which RCPI was organized through the most recent December 31, RCPI has
been subject to taxation as a real estate investment trust (a "REIT") under
Subchapter M of the Code and has satisfied all requirements to qualify as a
REIT for such years. In addition, assuming hypothetically that (i) RCPI's
taxable year in which the Merger occurs were to close immediately prior to the
Closing, and (ii) all recordkeeping and notice requirements in respect of such
year will be complied with, then, without giving effect to the Merger, RCPI
will be for such hypothetical short year subject to taxation as a REIT under
Subchapter M of the Code and will satisfy all requirements to qualify as a
REIT for such year. RCPI is not aware of any fact or circumstance that could
reasonably be expected to prevent it from continuing so to qualify until the
time immediately prior to the Closing (without giving effect to the Merger).
(ii) Except as set forth on Section 3.1(i)(ii)
of the RCPI Disclosure Schedule or as would not, individually and in the
aggregate, have a Material Adverse Effect on RCPI:
(A) All Taxes required to be paid on or before the date
hereof by or with respect to RCPI and its Subsidiaries have been timely paid,
and any Taxes required to be paid by or with respect to RCPI and its
Subsidiaries (or any of them) after the date hereof and on or before the
Effective Time shall be timely paid.
(B) All Tax Returns required to be filed by or with
respect to RCPI or its Subsidiaries on or before the date hereof have been
timely filed. All Tax Returns required to be filed by or with respect to RCPI
or any of its Subsidiaries after the date hereof and on or before the
Effective Time shall be prepared and timely filed in a manner consistent with
prior years and applicable Laws. No penalties or other charges are or will
become due with respect to the late filing of any Tax Return of RCPI or any
of its Subsidiaries or payment of any Tax of RCPI or any of its Subsidiaries
required to be filed or paid on or before the Effective Time.
(C) With respect to all Tax Returns filed by or with
respect to RCPI and any of its Subsidiaries, no audit is in progress and no
waiver or agreement for an extension of time has been executed with respect to
any date on which any Tax Return was or is to be filed and no waiver or
agreement has been executed for the extension of time for the assessment or
payment of any Tax.
(D) There are no liens for Taxes upon the assets of RCPI
or any of its Subsidiaries except liens for current Taxes not yet delinquent.
(E) RCPI has provided Parent copies of all revenue
agent reports and related schedules related to pending Tax audits of RCPI or
any of its Subsidiaries or any predecessor thereof or any of its Subsidiaries.
Neither RCPI nor any of its Subsidiaries has received any notice of
deficiency, assessment or proposed deficiency or assessment from any federal,
state, local or foreign taxing authority, and neither RCPI nor any of its
Subsidiaries has been advised by any such authority that any such notice is
forthcoming.
(F) RCPI has not filed a consent to the application of
Section 341(f) of the Code.
(G) Neither RCPI nor any of its Subsidiaries has
made or become obligated to make, or will become obligated as a result of any
event connected with any transaction contemplated herein to make, any "excess
parachute payment" as defined in Section 280G of the Code.
(H) Neither RCPI nor any of its Subsidiaries is subject
to any joint venture, partnership or other arrangement or contract that is
treated as a partnership for Federal income tax purposes.
(j) Certain Agreements. Except as set forth on Section
3.1(j) of the RCPI Disclosure Schedule and except for this Agreement, as of
the date of this Agreement, neither RCPI nor any of its Subsidiaries is a
party to any oral or written plan, including any stock option plan, stock
appreciation right plan, restricted stock plan or stock purchase plan, any of
whose benefits will be increased, or the vesting of whose benefits will be
accelerated, by the occurrence of any of the transactions contemplated by this
Agreement or the value of any of whose benefits will be calculated on the
basis of any of the transactions contemplated by this Agreement. RCPI has
made available to Parent copies of the plans listed on Section 3.1(j) of the
RCPI Disclosure Schedule.
(k) Employee Benefits.
(i) Except as set forth on Section 3.1(k) of
the RCPI Disclosure Schedule, neither RCPI nor any of its Subsidiaries is a
party to or participates in or has any liability or contingent liability with
respect to (A) any "employee welfare benefit plan" or "employee pension
benefit plan" as those terms are respectively defined in sections 3(1) and
3(2) of ERISA (collectively, the "Plans"); (B) any retirement or deferred
compensation plan, incentive compensation plan, stock plan, unemployment
compensation plan, vacation pay, severance pay, bonus or benefit arrangement,
insurance or hospitalization program or any other fringe benefit arrangements
for any current or former Agent, whether pursuant to contract, arrangement,
custom or informal understanding, that does not constitute an "employee
benefit plan" (as defined in section 3(3) of ERISA); or (C) any employment,
consulting or similar agreement. RCPI has made available to Parent true and
complete copies of all plans, arrangements and agreements set forth on Section
3.1(k) of the RCPI Disclosure Schedule.
(ii) Except as set forth on Section 3.1(k) of
the RCPI Disclosure Schedule, neither RCPI nor any of its Subsidiaries
contributes to, has contributed to, or has any liability or contingent
liability with respect to, any multiemployer plan (as defined in section 3(37)
of ERISA).
(iii) Except for violations or instances of
noncompliance or nonperformance specifically described on Section 3.1(k) of
the RCPI Disclosure Schedule, each of RCPI and each of its Subsidiaries (A) is
in compliance with and not in default with respect to statutes, orders, rules
and regulations under ERISA and the Code applicable to any Plans sponsored by
RCPI; (B) has performed all obligations required to be performed by it with
respect to such Plans; (C) is not in violation, and has no knowledge of any
default or violation of any third party, in respect of any of the Plans; and
(D) has properly and timely made all required contributions, has fully funded
on a termination basis the Plans and has maintained and operated each Plan
intended to qualify under section 401(a) of the Code in compliance with the
requirements of section 401(a) of the Code (and has maintained and operated
any related trust in compliance with the requirements of section 501(a) of the
Code.)
(iv) Except pursuant to any agreement set forth
on Section 3.1(k) of the RCPI Disclosure Schedule or in the RCPI SEC
Documents, the consummation of the transactions contemplated by this Agreement
will not, without additional discretionary action by RCPI, any of RCPI's
Subsidiaries, Parent or Sub with respect to current or former Agents of RCPI,
entitle any individual to severance pay or accelerate the time of payment or
vesting of, increase the amount of, or satisfy a condition to the compensation
due to any individual.
(l) The "Rockefeller Center" Name. RCPI has not sold,
conveyed, assigned, pledged or otherwise transferred or disposed of any rights
in or to the "Rockefeller Center" name or any variation thereof, nor has RCPI
granted to any Person any license or any other right to use the "Rockefeller
Center" name or any variation thereof. The foregoing shall not imply that
RCPI has or has had any such rights.
(m) Contracts. Section 3.1(m) of the RCPI Disclosure
Schedule lists (i) all the material Contracts to which RCPI or any of its
Subsidiaries is a party or by which RCPI or any of its Subsidiaries is bound
or to which any of the assets or properties of RCPI or any of its Subsidiaries
is subject and (ii) any material licenses, certificates or permits that RCPI
or any of its Subsidiaries holds or to which RCPI or any such Subsidiary is
subject. RCPI has made available true and complete copies of each document
listed on Section 3.1(m) of the RCPI Disclosure Schedule and a written
description of each oral arrangement so listed. Except for defaults, breaches
or violations described on Section 3.1(m) or Section 3.1(c)(iii) of the RCPI
Disclosure Schedule, neither RCPI nor any of its Subsidiaries is, and, to the
knowledge of RCPI, no other parties thereto are, in default, breach or
violation of any such contracts. Except for the Combination Agreement and the
Investment Agreement, RCPI is not a party to any agreement, arrangement or
understanding of any kind with ▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇"), any of ▇▇▇▇'▇ Affiliates
or any party to the Combination Agreement or the Investment Agreement.
(n) Absence of Certain Changes or Events. Except for
any change, occurrence or circumstance described on Section 3.1(n) of the
RCPI Disclosure Schedule and except as contemplated by this Agreement,
since December 31, 1994, RCPI has conducted its businesses only in the
ordinary course of business consistent with past practices, and as of the
date of this Agreement, there has not been (i) unless and to the extent
required to meet the qualification rules for a REIT under Section 857(a) of
the Code or to avoid any excise tax under Section 4981 of the Code, any
declaration, setting aside or payment of any dividend or other distribution
(whether in cash, stock or property) with respect to any of RCPI's capital
stock or any return of any capital or other distribution of assets to
stockholders of RCPI; (ii) any investment by RCPI either by the purchase
of any property or assets or by any acquisition (by merger, consolidation
or acquisition of stock or assets) of any corporation, partnership or other
business organization or division thereof; (iii) any sale, disposition or
other transfer of assets or properties of RCPI in excess of $250,000
individually or $1,000,000 in the aggregate (other than the repayment of
Debt or other liabilities as required by the agreements with respect
thereto and subject to the terms of RCPI's other agreements as in effect as
of the date hereof); or (iv) any change, occurrence or circumstance of any
character (whether or not in the ordinary course of business) that,
individually or in the aggregate, has had or would have a Material Adverse
Effect on RCPI. For the purposes of the foregoing, the phrase "ordinary
course of business consistent with past practices" shall include changes in
the ordinary course of business of RCPI instituted as a result of, and
shall take into account the effects of, the Borrower's Chapter 11 Case (it
being understood that such construction shall not relieve RCPI of any of
its obligations under this Agreement).
(o) Recommendation of Board of Directors; Vote
Required. The Board of Directors of RCPI has unanimously approved this
Agreement, the Merger and the other transactions contemplated hereby and,
subject to Section 6.1(g) hereof, has determined to recommend to its
stockholders (the "Recommendation") that its stockholders vote in favor of
the adoption and approval of this Agreement. The provisions of clause
(a)(ii) of paragraph A of Article EIGHTH of the Restated Certificate of
Incorporation of RCPI have been satisfied. Assuming that the holders of at
least 62.5% of the Warrants and SARs approve this Agreement pursuant to the
sixth paragraph of the December 1994 Letter, the affirmative vote of a
majority of the votes that the holders of the outstanding shares of Common
Stock are entitled to cast with respect to the adoption and approval of
this Agreement is the only vote of the holders of any class or series of
the capital stock of RCPI necessary to approve the Merger and the other
transactions contemplated hereby.
(p) Opinion of Financial Advisor. RCPI has received
the opinion of PaineWebber Incorporated, dated the date hereof, to the effect
that, as of such date, the Merger Consideration is fair to the RCPI
stockholders from a financial point of view, and such opinion has not been
withdrawn.
(q) Accuracy of Information Supplied. Neither this
Agreement nor any schedule, exhibit, written statement, list, document or
certificate furnished or to be furnished by or on behalf of RCPI to Parent,
Sub or any of their Agents or Affiliates in connection with this Agreement or
any of the transactions contemplated hereby, taken as a whole, contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein, in light of the circumstances in which they are made, not misleading.
(r) Proxy Statement.
(i) On the date the Proxy Statement is first
mailed to RCPI's stockholders, at the time of the Stockholders' Meeting (as
hereinafter defined) and at the Effective Time, the Proxy Statement will
comply in all material respects with the requirements of the Exchange Act and
will not contain any statement that, at such time and in light of the
circumstances under which it is made, is false or misleading with respect to
any material fact, or omits to state any material fact required to be stated
therein or necessary to make the statements therein not false or misleading or
necessary to correct any statement in any earlier communication with respect
to the solicitation of proxies for the Stockholders' Meeting that shall have
become false or misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Proxy Statement made in reliance upon and in conformity with
information furnished to RCPI in writing by or on behalf of Parent, Sub or any
Investor (or any Affiliate of any Investor) expressly for use in the Proxy
Statement.
(ii) The accountants who certified the
financial statements and supporting schedules of RCPI included (or
incorporated by reference) or to be included (or incorporated by reference) in
the Proxy Statement are independent public accountants as required by the
Securities Act.
(iii) The financial statements of RCPI included
(or incorporated by reference) or to be included (or incorporated by
reference) in the Proxy Statement present or will present fairly the financial
position of RCPI and its consolidated Subsidiaries as of the dates indicated
and the results of their operations for the periods specified in accordance
with GAAP (subject, in the case of unaudited financial statements, to normal
year-end adjustments), and the supporting schedules included (or incorporated
by reference) or to be included (or incorporated by reference) in the Proxy
Statement present or will present fairly the information required to be stated
therein in accordance with GAAP. Except as otherwise stated in the Proxy
Statement, such financial statements have been or will have been prepared in
conformity with GAAP consistently applied.
(s) Brokers or Finders. Except as otherwise
disclosed herein or in the Schedules attached hereto, no broker, finder or
investment banker (other than PaineWebber Incorporated) is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated hereby based upon arrangements made by or on
behalf of RCPI. RCPI has heretofore made available to Parent a complete
and correct copy of all agreements between RCPI and PaineWebber
Incorporated pursuant to which such firm would be entitled to any payment
relating to the transactions contemplated hereby.
(t) Government Regulation. RCPI is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, or the Interstate Commerce Act, each as amended. In addition, RCPI
is not (i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is not controlled by
such a company, or (ii) a "holding company," or a "subsidiary company" or a
"holding company," or an "affiliate" of a "holding company" or of a
"subsidiary" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(u) No Pending Condemnation or Eminent Domain. RCPI
has no knowledge of any pending or threatened condemnation or eminent domain
proceedings that would affect the Property.
(v) Subordination of Certain Leases. To the knowledge
of RCPI, each of the lease, dated July 1, 1982, between RCP and Radio City
Music Hall Productions, Inc., and the lease, dated July 15, 1985, between RCP
and Rockefeller Center Management Corporation ("RCMC") relating to the parking
garage located at the Property, if and as each such lease has been amended and
supplemented, is subject and subordinate to the Mortgage, and none of the
tenants under such leases has any rights of nondisturbance under such leases.
RCPI has not entered into any agreement pursuant to which RCPI has agreed to
recognize the rights of Rockefeller Center Telecommunications Corporation
("RCTC") under that certain Franchise Agreement, dated September 7, 1985, for
the Provision of Telecommunications Services between RCMC and RCTC, as it may
be amended, notwithstanding a foreclosure on the Property pursuant to the
Mortgage.
(w) No Insolvency Proceeding. No proceeding for relief
under the Bankruptcy Code or for similar relief under the laws of any state
has been commenced by or against RCPI.
(x) Insurance. Section 3.1(x) of the RCPI Disclosure
Schedule sets forth a list of all policies or binders of fire, liability,
product liability and other insurance held by or on behalf of RCPI or any of
its Subsidiaries (the "Insurance Policies"), and a brief description of each
Insurance Policy, including (i) the amount of any deductible under such
Insurance Policy, (ii) a description of each pending claim under such
Insurance Policy of more than $50,000, (iii) the aggregate amounts paid out
under such Insurance Policy through the date hereof and (iv) the aggregate
limit, if any, of the insurer's liability under such Insurance Policy. The
Insurance Policies insure against risk and liabilities to the extent and in
the manner deemed appropriate and sufficient by RCPI. RCPI and its
Subsidiaries are not in default with respect to any provision contained in any
Insurance Policy and have not failed to give any notice or present any claim
under any such Insurance Policy in a due and timely fashion. Except with
respect to any Insurance Policies that are to be replaced as indicated on
Section 3.1(x) of the RCPI Disclosure Schedule, RCPI and its Subsidiaries have
received no notice of cancellation or non-renewal of, or denial of coverage
under, any Insurance Policy. RCPI has made available to Parent copies of each
Insurance Policy.
Section 3.2 Representations and Warranties of Parent, Sub,
Investors and GSMC. Each Investor represents and warrants to RCPI (with
respect to itself and each of Parent and Sub), Parent represents and warrants
to RCPI (with respect to itself and Sub) and each of Sub and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Mortgage Company ("GSMC") represents and warrants (with respect to itself)
(provided that in the case of GSMC, all references to this Agreement
throughout this Section 3.2 shall mean only the Sections of this Agreement by
which GSMC is bound as indicated on the signature pages hereof) as follows:
(a) Organization, Standing and Corporate Power. Each
of Parent, Sub, GSMC and each of the Investors (other than Rockefeller) is a
corporation, partnership or limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization.
(b) Authority. Each of Parent, Sub, GSMC and each of
the Investors has all requisite power and authority to enter into this
Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have
been duly and validly authorized by all necessary action, if any, on the part
of each of Parent, Sub, GSMC and each of the Investors and no other
organizational proceedings on the part of any of Parent, Sub, GSMC or any of
the Investors are necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by each of Parent, Sub, GSMC and each of the Investors
and constitutes a valid and binding obligation of each of Parent, Sub, GSMC
and each of the Investors enforceable against each of Parent, Sub, GSMC and
each of the Investors in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, fraudulent transfer, reorganization or similar laws affecting the
enforcement of creditors' rights generally and by equitable limitations on the
availability of specific remedies.
(c) Government Approvals; Required Consents.
(i) No material consent, approval or
authorization of, or declaration or filing with, or notice to, any
Governmental Entity on the part of Parent, Sub, GSMC or any Investor is
required in connection with the execution or delivery by any of them of
this Agreement, or the consummation by Parent, Sub, GSMC or any Investor of
the transactions contemplated hereby or compliance by Parent, Sub, GSMC or
any Investor with the provisions hereof, other than (A) the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware
in accordance with the DGCL, (B) filings under the HSR Act and (C) as
otherwise set forth in Section 3.2(c)(i) of the P&S Disclosure Schedule
(any such consents, approvals, authorizations, declarations, filings or
notices specified in clauses (A) through (C) being referred to as "P&S
Governmental Approvals").
(ii) No material consent, approval or action of,
or filing with, or notice to, any Person (other than a Governmental Entity) is
required in connection with the execution or delivery by Parent, Sub, GSMC or
any Investor of this Agreement, the consummation by Parent, Sub, GSMC or any
Investor of the transactions contemplated hereby or compliance by Parent, Sub,
GSMC or any Investor with the provisions hereof, other than those that if not
obtained or made would not, individually and in the aggregate, have a material
adverse effect on the ability of Parent, Sub, GSMC or such Investor, as the
case may be, to consummate the Merger or the other transactions contemplated
hereby.
(d) Non-Contravention. The execution and delivery of
this Agreement by each of Parent, Sub, GSMC and each of the Investors do not,
and the consummation of the transactions contemplated hereby and compliance by
each of Parent, Sub, GSMC and each of the Investors with the provisions hereof
will not (i) conflict with or result in any violation of any provision of the
certificate of incorporation or by-laws or equivalent organizational
documents, in each case as amended to date, of Parent, Sub, GSMC or any
Investor (other than Rockefeller); (ii) result in any violation or breach of,
or result in a modification of the effect of, or constitute (with or without
notice or lapse of time or both) a default under or give rise to any right of
termination, cancellation or acceleration under, any material Contract to
which Parent, Sub, GSMC or any Investor is a party or by or to which any of
them or any of their properties may be bound or subject, or result in the
creation of any Lien upon the properties of Parent, Sub, GSMC or any Investor
in each case pursuant to the terms of any such Contract; or (iii) if the P&S
Governmental Approvals are obtained, result in any violation of any Law
applicable to Parent, Sub, GSMC or any Investor in any material respect.
(e) Financing. Each Investor has, and at the Closing
will have, available to it all the funds necessary to satisfy its obligation
under Section 4.3(b).
(f) Proxy Statement. The information supplied by each
of Parent, Sub and each of the Investors for inclusion in the Proxy Statement
will not, on the date the Proxy Statement is first mailed to stockholders of
RCPI, at the time of the Stockholders' Meeting and at the Effective Time,
contain any statement that, at such time and in light of the circumstances
under which it is made, is false or misleading with respect to any material
fact, or omits to state any material fact required to be stated therein or
necessary in order to make the statements therein not false or misleading or
necessary to correct any statement in any information previously supplied by
any of Parent, Sub or any Investor for inclusion in the Proxy Statement that
shall have become false or misleading.
(g) Brokers or Finders. No broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the transactions contemplated hereby based
upon arrangements made by or on behalf of Parent, Sub or any Investor.
(h) No Agreement. As of the date hereof, there is no
agreement between any of the Investors, Parent, Sub or any of their respective
Affiliates, on the one hand, and Mitsubishi Estates Corporation, RGI or any of
their respective Affiliates, on the other hand, with respect to the
transactions contemplated hereby.
ARTICLE 4
COVENANTS
Section 4.1 Mutual Covenants of RCPI, Parent,
Sub, GSMC and Each Investor. With respect to itself only, each of RCPI, each
of the Investors, Parent, Sub and, with respect to Sections 4.1(a) and (b)
only, GSMC agrees that, except as expressly contemplated or permitted by this
Agreement, it shall comply with the following covenants:
(a) Satisfaction of Conditions; Additional Agreements.
Subject to the terms and conditions of this Agreement, each party hereto
agrees to use its reasonable best efforts to cause the conditions set forth in
Article 5 of this Agreement to be satisfied, and to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary, proper
or advisable under applicable Laws to consummate and make effective as
promptly as practicable the transactions contemplated by this Agreement,
including cooperating fully with the other parties, including by provision of
information and making of all necessary filings in connection with, among
other things, the HSR Act.
(b) Confidentiality. From and after the date hereof,
each party hereto shall, and shall use its best efforts to cause its
Affiliates and its and their respective Agents to, keep secret and hold in
strictest confidence any and all documents and information identified by
any other party as confidential and furnished to such first party (whether
before or after the date hereof) in connection with the transactions
contemplated hereunder, other than the following: (i) information that has
become generally available to the public other than as a result of a
disclosure by such party, its Affiliates or its Agents; (ii) information
that has become available to such party or an Agent of such party on a
nonconfidential basis from a third party having, to the knowledge of such
party (after reasonable inquiry), no obligation of confidentiality or other
legal or fiduciary obligation of secrecy to a party to this Agreement and
that has not itself, to the knowledge of such party (after reasonable
inquiry), received such information directly or indirectly in breach of any
such obligation; (iii) information that is required to be disclosed by
applicable Law or pursuant to any listing agreement with, or the rules or
regulations of, any securities exchange on which securities of such party
or any such Affiliate are listed or traded; (iv) disclosures made by any
party as shall be reasonably necessary in connection with obtaining the
RCPI Required Consents; and (v) disclosures required in connection with the
Borrower's Chapter 11 Case. If any party hereto is required to disclose
any such confidential information pursuant to applicable Law, such party
shall promptly notify each other party in writing, which notification shall
include the nature of the legal requirement and the extent of the required
disclosure, and shall cooperate with each other party to preserve the
confidentiality of such information consistent with applicable Law. In the
event the transactions contemplated by this Agreement are not consummated,
each party hereto shall return all materials in its possession containing
confidential information belonging to another party and shall not use any
such information for any purpose whatsoever.
(c) Publicity. Except as otherwise required by
applicable Law or the rules or regulations of any securities exchange on which
the securities of such party or any Affiliate of such party are listed or
traded, no party shall issue or cause the publication of any press release or
other public announcement with respect to the transactions contemplated by
this Agreement without the consent of each other party, and in any event, each
party agrees that it shall give each other party reasonable opportunity to
review and comment upon any such release or announcement prior to publication
of the same.
(d) Advice of Breach. RCPI, on the one hand, and
Parent, on the other hand (the "notifying party"), shall promptly notify the
other in writing of any material breach of any covenant hereunder by the
notifying party (and, in the case of Parent, by Sub, GSMC or any Investor) and
of any event occurring subsequent to the date of this Agreement of which the
notifying party becomes aware that renders any representation or warranty of
the notifying party (and, in the case of Parent, of Sub, GSMC or any Investor)
contained herein untrue or inaccurate in any material respect. Information
provided to a party pursuant to this Section shall not be deemed to cure any
breach of any representation, warranty or covenant of the notifying party
(and, in the case of Parent, of Sub, GSMC or any Investor) made in this
Agreement.
Section 4.2 Covenants of RCPI. During the period from
the date of this Agreement and continuing until the earlier of the Closing
and the termination of this Agreement in accordance with Section 6.1, RCPI
agrees that, except as expressly permitted by this Agreement, or to the
extent that Parent shall otherwise consent in writing:
(a) Access to Information and Facilities. RCPI shall
give Parent and its Agents reasonable access during normal business hours
to all of the facilities, properties, books, Contracts, commitments and
records of RCPI and shall make the officers of RCPI available to Parent and
its Agents as Parent shall from time to time reasonably request pursuant to
reasonable notice. RCPI shall make available to Parent and its Agents (x)
all financial statements, rent rolls, environmental reports, engineering
reports and other similar documents relating to the Property upon receipt
thereof from the Borrower (or, with respect to any such documents received
prior to the date hereof, promptly following the date hereof), (y) all
filings with the SEC made by or relating to RCPI as promptly as reasonably
practicable after filing, in the case of filings made by RCPI, or receipt,
in the case of filings made by unrelated third parties, and (z) all
information concerning RCPI that Parent and its Agents may reasonably
request (provided that such information shall not be required to include
any information related to the consideration by RCPI's Board of Directors
of the Merger or any Alternate Transaction, except as required by Section
4.2(e) hereof). Notwithstanding the foregoing, to the extent that making
any documents or information available to Parent and its Agents pursuant to
clause (x) or (z) would violate any confidentiality agreement to which RCPI
is a party as of the date hereof, RCPI shall not be obligated to do so;
provided, however, that RCPI shall, in such event, (A) use reasonable best
efforts to obtain waivers of any such confidentiality agreement to the
extent necessary to permit RCPI to make such documents and information
available to Parent and its Agents and (B) notify Parent promptly to the
extent that it is prohibited from making any such documents or information
available to Parent and its Agents under any such confidentiality
agreement.
(b) Ordinary Course. Except as may otherwise be
expressly provided by the terms of this Agreement, RCPI shall (and shall cause
each of its Subsidiaries to) (i) operate only in the ordinary course of
business consistent with past practices, (ii) not take or permit any action or
omission that would cause any of the representations or warranties of RCPI
contained herein to become inaccurate in any material respect or any of the
covenants of RCPI to be breached in a material manner, and (iii) take such
reasonable steps as may be within its power prior to the Closing so that it
shall continue to qualify to be taxed as a REIT, based on the income and
assets of RCPI for the periods prior to the Closing, as long as a REIT is
accorded substantially the same treatment under the United States income tax
laws from time to time in effect as under Sections 856-860 of the Code, in
effect at the date of this Agreement, as originally executed. For the
purposes of the foregoing, the phrase "ordinary course of business consistent
with past practices" shall include changes in the ordinary course of business
of RCPI instituted as a result of, and shall take into account the effects of,
the Borrower's Chapter 11 Case (it being understood that such construction
shall not relieve RCPI of any of its obligations under this Agreement).
Except as may be required by Law or as expressly provided by
the terms of this Agreement, RCPI shall not (and shall cause each of its
Subsidiaries not to):
(A) declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, Common Stock or other equity securities unless and to the
extent required to meet qualification rules for a REIT under Section 857(a) of
the Code or to avoid any excise tax under Section 4981 of the Code;
(B) authorize for issuance, issue, deliver, sell
or agree or commit to issue, sell or deliver (whether through the issuance or
granting of options, warrants, commitments, subscriptions, rights to purchase
or otherwise), pledge or otherwise encumber any shares of its capital stock,
any other voting securities or any securities convertible into, or any rights,
warrants or options to acquire, any such shares, voting securities or
convertible securities or any other securities or equity equivalents
(including without limitation stock appreciation rights);
(C) except as described on Section 4.2(b)(C) of
the RCPI Disclosure Schedule or except with respect to annual bonuses made
in the ordinary course of business consistent with past practice, adopt or
amend in any material respect any bonus, profit sharing, compensation,
severance, termination, stock option, stock appreciation right, pension,
retirement, employment, consulting or other employee benefit agreement,
trust, plan or other arrangement for the benefit or welfare of any current
or former director, officer, consultant or employee of RCPI or increase in
any manner the compensation or fringe benefits of any current or former
director, officer, consultant or employee of RCPI or any of its
Subsidiaries, or pay any benefit not required by any existing arrangement
or agreement or place any assets in any trust for the benefit of any
director, officer or employee of RCPI;
(D) amend its Restated Certificate of
Incorporation or By-laws;
(E) acquire or agree to acquire (x) by merging or
consolidating with, or by purchasing a substantial portion of the stock or
assets of, or by any other manner, any business or any corporation,
partnership, joint venture, association or other business organization or
division thereof or (y) any assets that are material, individually or in the
aggregate, to RCPI;
(F) (x) sell, lease, license, mortgage or
otherwise encumber or subject to any Lien (other than Permitted Liens), or
otherwise dispose of or transfer any of its real property or material assets,
whether now owned or hereafter acquired (other than the repayment of Debt or
other liabilities as required by the agreements with respect thereto and
subject to the terms of RCPI's other agreements as in effect as of the date
hereof), (y) sell any of its real property or material assets subject to an
understanding or agreement, contingent or otherwise, to repurchase such
property or assets (including sales of accounts receivable or notes with
recourse to it) or (z) assign any right to receive income;
(G) incur any Debt, issue or sell any debt
securities or warrants or other rights to acquire any debt securities of RCPI
or any of its Subsidiaries, guarantee any debt securities of another person,
enter into any "keep well" or other agreement to maintain any financial
statement condition of another Person or enter into any arrangement having the
economic effect of any of the foregoing, except for Debt permitted to be
incurred after December 31, 1995 under Section 4.4(b) hereof to fund Permitted
Expenses (as hereinafter defined);
(H) make any loans, advances or capital
contributions to, or investments in, any other Person;
(I) form, create or acquire any Subsidiary;
(J) incur or make payments with respect to any
general and administrative expenses or any other expenditures or commitments
of any kind, except for (x) the payment of interest on any Debt pursuant to
the terms of the agreements with respect thereto, (y) general and
administrative expenses in amounts not to exceed the amounts identified as
"Total G&A Expenses" on Schedule A incurred or paid during the months set
forth on Schedule A and (z) payments required to be made under interest rate
swap agreements to which RCPI is a party as of the date hereof in amounts not
to exceed the amounts identified as "Swap Expenses" on Schedule A paid during
the months set forth on Schedule A (together with any "Transaction Costs" set
forth on Schedule B, the payments referred to in clauses (x), (y) and (z)
being referred to as "Permitted Expenses"); provided that any amounts to be
incurred or paid pursuant to clause (y) or (z) in any month in accordance with
Schedule A may be paid in any subsequent month rather than in the scheduled
month;
(K) except as described on Section 4.2(b)(K) of
the RCPI Disclosure Schedule, waive, release, grant, or transfer any rights of
value or modify or change in any material respect any material existing
license, lease, Contract or other document (including, without limitation, the
RCPI Indenture);
(L) adopt a plan of complete or partial
liquidation or resolutions providing for or authorizing such a liquidation or
a dissolution, merger, consolidation, restructuring, recapitalization or
reorganization;
(M) (x) amend or in any way waive or modify in
any manner adverse to RCPI or the Investors (other than in connection with any
debtor-in-possession financing permitted by clause (Q) below) any provision of
the Mortgage or the Mortgage Note or the 1985 Loan Agreement or the Purchase
Option or (y) exercise the rights granted to it in the Purchase Option and
Article X of the 1985 Loan Agreement;
(N) change any of its accounting principles,
unless required by the SEC or the Financial Accounting Standards Board;
(O) settle or compromise any shareholder
derivative or class action suits arising out of the transactions contemplated
hereby or any other litigation (whether or not commenced prior to the date of
this Agreement) or settle, pay or compromise any claims not required to be
paid, individually in an amount in excess of $100,000 and in the aggregate in
an amount in excess of $1,000,000, other than in consultation and cooperation
with Parent, and with respect to any such settlement, with the prior written
consent of Parent (which consent shall not be unreasonably withheld);
(P) enter into any transaction or series of
transactions with any Affiliate of RCPI or otherwise that would be required
to be disclosed pursuant to Item 404 of Regulation S-K other than on terms
and conditions substantially as favorable to RCPI as would be obtainable by
RCPI at the time of such transaction with a Person that is not an Affiliate
of RCPI;
(Q) consent to or approve (x) any debtor-in-
possession financing other than the debtor-in-possession financing approved
by order of the Bankruptcy Court on October 30, 1995 (the "DIP Facility"),
as limited by that certain Stipulation and Order Supplementing Cash
Collateral Orders in Connection with Debtor in Possession Financing (the
"Stipulation"), except that RCPI shall not consent to any borrowings under
subparagraph 1(iii) or (iv) of the Stipulation, or (y) any application of
the proceeds of any debtor-in-possession financing that deviates from the
uses approved by the Bankruptcy Court or permitted by the Stipulation, in
either case, without Parent's written consent, which shall not be
unreasonably withheld or delayed; or
(R) agree to take any of the actions described in
clauses (A) through (Q) above.
(c) Stockholders' Meeting; Fiduciary Duties. Promptly
after the date hereof, RCPI shall give notice of and take all other action
necessary in accordance with the DGCL, its Restated Certificate of
Incorporation and By-laws and the Exchange Act to convene and hold a meeting
of RCPI's stockholders (the "Stockholders' Meeting") as promptly as
practicable after the date hereof to, among other things, consider and vote
upon this Agreement, and RCPI shall consult with Parent with respect to the
date, time and location of, agenda for, and all other arrangements with
respect to such meeting. The Board of Directors of RCPI shall not withdraw or
modify or propose to withdraw or modify in a manner adverse to Parent or Sub
the Recommendation, unless the Board of Directors of RCPI concludes in good
faith based on the advice of outside legal counsel that such action is
necessary for the Board of Directors of RCPI to comply with its fiduciary
obligations to stockholders under applicable Law. Unless the Recommendation
shall have been withdrawn or modified in a manner adverse to Parent, RCPI
shall use its reasonable best efforts to solicit from stockholders of RCPI
proxies in favor of the approval and adoption of this Agreement and to secure
the vote or the consent of the stockholders required by the DGCL and its
Restated Certificate of Incorporation and By-laws to approve and adopt this
Agreement.
(d) Preparation of the Proxy Statement.
(i) As soon as practicable following the date of
this Agreement, with all reasonably necessary assistance from Parent, RCPI
shall prepare and cause to be filed with the SEC the Proxy Statement. The
Proxy Statement shall comply with all applicable provisions of the Exchange
Act, including, without limitation, Rule 14a-9 thereunder. RCPI shall provide
Parent and its Agents with reasonable opportunity to review and comment upon
the Proxy Statement prior to the filing thereof with the SEC or the
distribution thereof to the stockholders of RCPI, and shall make all
reasonable changes thereto requested by Parent or its Agents, and shall not
file the Proxy Statement or any amendments thereto to which Parent or its
Agents shall reasonably object.
(ii) RCPI will file promptly all reports and
any other definitive proxy or information statements required to be filed by
RCPI with the SEC pursuant to the Exchange Act for so long as the delivery of
a proxy statement is required in connection with the solicitation of the
holders of Common Stock pursuant to the Proxy Statement.
(iii) If any event shall occur as a result of
which it is necessary, in the opinion of legal counsel to Parent or RCPI, to
amend the Proxy Statement in order to make the Proxy Statement not misleading
in the light of the circumstances existing at the time it is delivered to a
holder of Common Stock, RCPI shall forthwith amend the Proxy Statement (in
form and substance reasonably satisfactory to legal counsel to Parent) so
that, as so amended, the Proxy Statement will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the time
it is delivered to a holder of Common Stock, not misleading.
(e) Exclusivity. Prior to the termination of this
Agreement pursuant to Article 6 hereof, and except as hereinafter provided,
neither RCPI nor any Affiliate thereof, nor any of their respective Agents
(collectively, the "RCPI Parties"), shall, directly or indirectly, solicit,
pursue or attempt to engage in or enter into any discussions with any
Person (including the Borrower and Affiliates thereof) other than the
Investors, GSMC, Parent or Sub (or any of their respective Affiliates),
with a view toward entering into an Alternate Transaction. Notwithstanding
the foregoing, RCPI may respond to and pursue an unsolicited proposal to
consummate an Alternate Transaction (an "Alternate Transaction Proposal")
that RCPI's Board of Directors determines could be financially superior to
the Merger, if, based on the advice of outside legal counsel, RCPI's Board
of Directors believes it has a fiduciary duty to the holders of Common
Stock under applicable Law to respond to and pursue such Alternate
Transaction Proposal; provided that RCPI shall notify Parent of such
Alternate Transaction Proposal prior to responding thereto (but RCPI shall
not be obligated to disclose the identity of the Person making such
Alternate Transaction Proposal or any of the terms thereof). In addition,
RCPI may provide at any time information concerning RCPI and the Property
to third parties in response to requests for same (but may not provide
information about Parent, Sub, GSMC (or its Affiliates), any Investor or
this Agreement or anything contained herein or relating hereto unless and
to the extent required by Law).
(f) New Leases; Approval Rights. Prior to the
termination of this Agreement pursuant to Section 6.1 hereof, (i) RCPI shall
not, without the prior written consent of Parent, approve the terms of any
lease for space in the Property and will object to any such lease submitted
to it for approval unless otherwise instructed in writing by Parent, but
Parent shall not unreasonably object to, withhold or delay its approval as to
any such lease and any objection or disapproval shall be based solely on
economic considerations (provided that the form of such lease shall be
consistent with the forms of leases for space in the Property in effect as of
the date hereof) and (ii) RCPI shall not exercise any other approval rights in
its capacity as mortgagee under the Mortgage without the prior written consent
of Parent, which consent shall not be unreasonably withheld or delayed. A
failure by Parent to object to any proposed exercise of an approval right by
RCPI within five Business Days after a written request for approval by Parent
is received by Parent shall be deemed an approval by Parent.
(g) Notice of Default. Upon RCPI's obtaining knowledge
thereof, it shall give written notice to Parent promptly, but in any event
within five Business Days, of the occurrence of any of the following with
respect to each of RCPI and any of its Subsidiaries: (i) the occurrence of an
event or condition that constitutes a default or an event of default under any
material Contract of RCPI or any of its Subsidiaries, specifying the nature
and existence thereof and what action RCPI proposes to take with respect
thereto; (ii) the pendency or commencement of any material litigation,
arbitral or governmental proceeding against RCPI or any of its Subsidiaries;
(iii) any levy of an attachment, execution or other process against their
respective assets in excess of $1,000,000 in the aggregate; (iv) any
development in its business or affairs that has resulted in, or that RCPI
reasonably believes may result in, a Material Adverse Effect on RCPI; (v) the
institution of any proceedings against RCPI, or the receipt of notice of
potential liability or responsibility of RCPI for any violation, or alleged
violation of any Law the violation of which could give rise to a material
liability, or have a Material Adverse Effect on RCPI; (vi) the occurrence of
an event or condition that may render RCPI unable to qualify as a REIT under
the Code or (vii) the occurrence of any other event or condition that would
have a Material Adverse Effect on RCPI.
(h) Bankruptcy Cases.
(i) RCPI has filed with the Bankruptcy
Court in the Borrower's Chapter 11 Case its Motion Pursuant to Bankruptcy
Code Section 1121(d) to Terminate Exclusivity and for Authority to Conduct
Bankruptcy Rule 2004 Examinations (the "Bankruptcy Motion") (x) requesting
that the Borrower's exclusive solicitation period be terminated and (y)
seeking authorization for RCPI to file its own plan of reorganization for
the Borrower. Following a hearing on the Bankruptcy Motion, Borrower has
agreed that it will transfer the Property to RCPI pursuant to a chapter 11
plan to be proposed and filed jointly by RGI, Borrower and RCPI in
Borrower's Chapter 11 Case (the "Joint Plan for Borrower"). RCPI shall
file the Joint Plan for Borrower, which shall be reasonably acceptable to
Parent, as promptly as reasonably practicable. In addition, a motion
requesting the Bankruptcy Court to set a hearing on approval of the
disclosure statement and authorizing commencement of solicitation of
acceptances of the Joint Plan for Borrower shall be filed as soon as
possible after the filing of the Joint Plan for Borrower and the related
disclosure statement, but in any event so as to allow the Joint Plan for
Borrower to be confirmed by February 29, 1996.
(ii) Except as specifically set forth in
subparagraph (h)(i) above with respect to the Bankruptcy Motion or
subparagraph (h)(iii) below with respect to "emergency" matters, RCPI shall
not file or support any material applications, motions, pleadings, chapter 11
plans, disclosure statements or other documents ("RCPI Pleadings") or take any
other material action (including, without limitation, accepting or approving
any chapter 11 plan or affirming or disaffirming any lease or contract)
relating to the Borrower's Chapter 11 Case (it being understood that whether
any pleading, document or other action is "material" for purposes of this
paragraph shall be reasonably determined by Parent), without the prior consent
(in writing, to the extent practicable) of Parent (which consent shall not be
unreasonably withheld or delayed).
(iii) Any and all RCPI Pleadings filed by RCPI
in the Borrower's Chapter 11 Case that are material (as reasonably determined
by Parent) shall be in form and substance reasonably satisfactory to Parent.
RCPI shall not file any material RCPI Pleadings, nor take any other action
that is material (as reasonably determined by Parent) in any way relating to
the Borrower's Chapter 11 Case without the prior consent (in writing, to the
extent practicable) of Parent (which consent shall not be unreasonably
withheld or delayed). RCPI shall provide Parent copies of all RCPI Pleadings
proposed to be filed by RCPI in the Borrower's Chapter 11 Case and shall fully
advise Parent of any material action proposed to be taken by RCPI in any way
relating to the Borrower's Chapter 11 Case no less than 48 hours prior to any
such proposed filing or action unless there shall not be sufficient time to
permit such 48-hour notice, in which event RCPI shall fully advise Parent
orally if any such action is to be taken on a short term or "emergency" basis.
(iv) RCPI shall as promptly as reasonably
practicable advise Parent of any "emergency" matters relating to or arising in
Borrower's Chapter 11 Case.
(v) Without limiting the foregoing, as
promptly as reasonably practicable, RCPI shall provide Parent with all
notices, amendments, stipulations, waivers, requests and consents relating to
the DIP Facility.
(i) Prepayment of ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Loans; Termination
of ▇▇▇▇ Agreements. Concurrently with the execution of this Agreement, RCPI
shall take all steps reasonably requested by Parent to terminate the
Combination Agreement, and upon receipt of the proceeds of the initial GSMC
Loans (as hereinafter defined), RCPI shall repay any and all amounts borrowed
by RCPI pursuant to the terms of the Investment Agreement, and shall
thereafter take all steps reasonably requested by Parent to terminate the
Investment Agreement. Except as permitted by this Section 4.2(i), RCPI shall
not, (i) without the prior written consent of Parent, make any payments under
or (ii) without the prior written consent of Parent, which shall not be
unreasonably withheld, take any action with respect to the Combination
Agreement or the Investment Agreement.
(j) Release. Concurrently with the execution of this
Agreement, RCPI shall execute a release substantially in the form of Exhibit B.
Section 4.3 Covenants of the Investors. Each Investor
agrees (with respect to itself only) as follows:
(a) Releases. Concurrently with the execution of this
Agreement, each of the Investors shall (and Whitehall shall cause GSMC and
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("GS") to) execute a release substantially in the form of
Exhibit B.
(b) Investor Commitments. Immediately prior to the
Effective Time, each of the Investors (or its designee) shall contribute to
the capital of Parent or Sub an amount in cash equal to the amount set forth
opposite such Investor's name on Exhibit C, the sum of which amounts shall be
sufficient to satisfy the obligations of Parent and Sub to pay the Merger
Consideration to the holders of Common Stock pursuant to Section 2.1(a).
Section 4.4 Covenants of GSMC and Whitehall.
(a) GS Board Nominee. From the date hereof through the
earlier of (i) the Effective Time and (ii) the termination of this Agreement
pursuant to Section 6.1, Whitehall shall cause GS to refrain from exercising
its rights under the December 1994 Letter to (x) designate the GS Nominee (as
defined in the December 1994 Letter) to the Board of Directors of RCPI and (y)
enforce RCPI's obligations under the December 1994 Letter to use its best
efforts to cause the Board and each committee thereof to include the GS
Nominee.
(b) GSMC Loans. Concurrently with the execution of
this Agreement, GSMC shall make available to RCPI additional credit (secured
pursuant to existing security arrangements provided for in the Loan Documents)
in an amount up to a total of (A) $33 million plus (B) $12 million to pay
Permitted Expenses if the Closing Date shall not have occurred on or before
December 31, 1995, in each case under the terms of the Goldman Loan Agreement
(the "GSMC Loans"); provided that (1) of the amount described in clause (A),
an amount sufficient to pay all interest that will become due from RCPI to
Whitehall and GSMC on or before December 31, 1995 shall be available only to
pay such interest and (2) of the amount described in clause (B), an amount
sufficient to pay all interest that will become due from RCPI to Whitehall and
GSMC on or before March 31, 1996 shall be available only to pay such interest.
Notwithstanding the provisions of the Goldman Loan Agreement, (i) such
additional amounts may be borrowed by RCPI at any time and from time to time
after the date hereof, (ii) once borrowed, such amounts may be prepaid by RCPI
at any time (without penalty), (iii) once prepaid, such amounts may not be
reborrowed by RCPI and (iv) any such amounts shall accrue interest at a rate
equal to 10% per annum (compounded quarterly); provided that if any such
additional borrowings shall not have been repaid by the earlier of March 31,
1996 and the termination of this Agreement pursuant to Sections 6.1(b), 6.1(f)
or 6.1(g), then any such borrowings that remain outstanding shall thereafter
be subject to all of the terms and conditions (including interest rate and
prepayment provisions) contained in the Goldman Loan Agreement. In
consideration of the transactions contemplated by this Agreement, GSMC, on
behalf of the Lenders (as defined in the Goldman Loan Agreement), hereby
agrees that (x) RCPI shall not be required to use the proceeds of the GSMC
Loans to make the prepayments required by Section 2.05(b) of the Goldman Loan
Agreement and (y) RCPI shall be deemed not to have breached the Goldman Loan
Agreement by reason of having spent amounts reserved for payment of interest
(and thus deducted from Net Cash Flow as such term is defined in the Goldman
Loan Agreement) for purposes other than payment of interest, provided that
such amounts were used to pay expenses of the type included in Permitted
Expenses as such term is defined herein.
(c) No Exercise of SARs. Whitehall shall not (and
shall cause each holder of SARs not to), prior to the earlier of the Effective
Time and the termination of this Agreement pursuant to Section 6.1, exercise
the SARs, unless RCPI has taken any action and as a result the failure to
exercise such SARs would adversely affect the rights of Whitehall or such
holders with respect to the SARs, the value of the SARs to Whitehall or such
holders or the position of Whitehall, such holders or GSMC in RCPI. The
conversion by Whitehall or such holders of any SARs into 14% Debentures (as
such term is defined in the Stock Appreciation Rights Agreement) shall be
deemed not to be (i) an incurrence of Debt by RCPI in violation of this
Agreement or (ii) additional Debt for purposes of determining the satisfaction
of the conditions set forth in Section 5.2 of this Agreement.
ARTICLE 5
CONDITIONS PRECEDENT
Section 5.1 Conditions to the Obligations of Parent, Sub,
the Investors and RCPI to Effect the Merger. The respective obligations of
each party to effect the Merger shall be subject to the satisfaction of the
following conditions:
(a) Stockholder Approval. This Agreement shall have
been approved and adopted by the affirmative vote of a majority of the votes
that the holders of the outstanding shares of Common Stock are entitled to
cast.
(b) No Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction or other order or
decree issued by any court of competent jurisdiction or other Governmental
Entity or other legal restraint or prohibition (an "Injunction")
restraining or preventing the consummation of the Merger or subjecting any
party or any of its Affiliates to substantial damages as a result of the
consummation of the Merger shall be in effect, provided that the party
invoking this condition shall have used reasonable best efforts to have
such Injunction vacated.
(c) HSR Act. All HSR Act waiting periods shall have
expired or been terminated.
(d) Governmental Approvals. The RCPI Governmental
Approvals and the P&S Governmental Approvals shall have been obtained and
shall be in full force and effect.
(e) Required Consents. The RCPI Required Consents
(other than any consents and approvals of the Investors, GSMC and their
respective Affiliates) shall have been obtained and be in full force and
effect.
Section 5.2 Conditions to the Obligations of Parent, Sub
and the Investors. The obligations of Parent, Sub and each of the Investors
under this Agreement to consummate the transactions contemplated hereby are
subject to the satisfaction of the following conditions, the imposition of
which is solely for the benefit of Parent, Sub and each of the Investors and
any one of more of which may be expressly waived by Parent, in its sole
discretion, except as otherwise required by law:
(a) Accuracy of Representations and Warranties. The
representations and warranties of RCPI contained herein shall have been true
and correct in all material respects when made, and shall be true and correct
in all material respects (without regard to any "knowledge" qualifier
contained therein) at and as of the Closing Date as though made on and as of
the Closing Date (except to the extent that any such representation and
warranty had by its terms been made as of a specific date in which case such
representation and warranty shall have been true and correct in all material
respects (without regard to any "knowledge" qualifier contained therein) as of
such specific date). For purposes of this Section 5.2(a), the requirement
that the representations and warranties of RCPI shall be true and correct in
"all material respects" is not intended to establish a different or higher
materiality standard with respect to any representation or warranty that is
already qualified by a materiality or a Material Adverse Effect standard by
the terms thereof. Parent shall have received a certificate of RCPI dated the
Closing Date and signed by an officer of RCPI certifying, to the knowledge of
RCPI, to the fulfillment of this condition.
(b) Performance of Agreements. RCPI shall have
performed in all material respects all obligations and agreements and complied
in all material respects with all covenants and conditions contained in this
Agreement or otherwise contemplated hereby to be performed and complied with
by it at or prior to the Closing Date, and Parent shall have received a
certificate of RCPI dated the Closing Date and signed by an officer of RCPI
certifying, to the knowledge of RCPI, to the fulfillment of this condition.
(c) No Material Adverse Change. Since December 31
1994, no material adverse change in the financial condition of RCPI or the
financial or physical condition of the Property shall have occurred and be
continuing, it being understood that changes in the financial condition of
RCPI shall not be considered material for this purpose to the extent such
changes are attributable to (i) the initiation of any Permitted Litigation,
(ii) any acceleration or attempted acceleration of indebtedness of RCPI (or
any attempt to exercise any rights consequent thereto) as a result of any of
the transactions contemplated hereby, or (iii) any event or condition the
occurrence of which is reasonably foreseeable based on the disclosures made in
RCPI's Annual Report on Form 10-K for the year ended December 31, 1994 or its
quarterly reports on Form 10-Q for the quarters ended March 31, 1995 and June
30, 1995 (other than a filing for relief under the Bankruptcy Code by RCPI,
unless such filing is made with the consent of Parent).
(d) Liabilities of RCPI. Except for (i) the
liabilities set forth or described on Schedule B, (ii) any liabilities
incurred after December 31, 1995 in accordance with Section 4.2(b)(G) to
fund Permitted Expenses incurred after December 31, 1995, (iii) any accrued
but unpaid interest on the outstanding Debt set forth or described on
Schedule B accruing after December 31, 1995, and (iv) Permitted
Litigations, as of the Closing Date, there shall be no outstanding Debt or
other liabilities or claims (including, without limitation, guaranty
obligations) of or against RCPI or any of its Subsidiaries (other than
liabilities and claims that, individually and in the aggregate, are de
minimis).
(e) Satisfactory Chapter 11 Plan. The Joint Plan for
Borrower or any other chapter 11 plan (an "Alternative Chapter 11 Plan")
confirmed in the Borrower's Chapter 11 Case, shall, among other things,
provide for the transfer to the Surviving Company (or its designee approved
by Parent) of (i) the Property, (ii) all other real property (including
leasehold interests) owned by the Borrower and used in connection with the
operation of the Property consistent with past practices and (iii) all
personal property (including leasehold interests) owned by the Borrower and
material to the operation of the Property consistent with past practices
and shall otherwise be filed on a date and be in form and substance
reasonably satisfactory to Parent. The maximum amount to be provided (or
assumed) by RCPI under the Joint Plan for Borrower or under any Alternative
Chapter 11 Plan to be used to fund liabilities of the Borrower or its
estate shall not exceed $20 million (exclusive of the debtor-in-possession
financing permitted under Section 4.2(b)(Q)), and such funded liabilities
shall consist only of liabilities related to administrative expenses,
claims entitled to priority under the Bankruptcy Code, cure payments
relating to leases and other executory contracts to be assumed (including
tenant improvements) reasonably acceptable to Parent, and certain general
unsecured claims reasonably acceptable to Parent. The disclosure statement
for, and the proceedings relating to confirmation of, the Joint Plan for
Borrower or for any Alternative Chapter 11 Plan also shall be in form and
substance reasonably satisfactory to Parent.
(f) Termination of ▇▇▇▇ Agreements. RCPI shall have
taken all steps reasonably requested by Parent to terminate the Investment
Agreement and the Combination Agreement.
(g) Condition of the Property. As of the Closing Date,
(i) there shall not exist any violations of
Law relating to the Property or structural defects in the Property that
would require the expenditure of more than $25 million to cure, repair or
replace (as applicable);
(ii) except for Permitted Liens, there shall
exist no defect of title to the Property arising since the date of the Title
Insurance that would materially adversely affect the value of the Property or
the ability to operate the Property for its current use; and
(iii) the Borrower shall not have violated or
taken any action inconsistent with any of the covenants set forth in the 1985
Loan Agreement or the Mortgage (other than any covenants relating to the
payment of principal or interest on the Mortgage Note), except to the extent
that such violation or action together with any other such violations and
actions would not have and would not be reasonably likely to have a material
adverse effect on the physical or financial condition of the Property.
(h) Environmental Matters.
(i) Except as set forth on Section 5.2(h) of
the RCPI Disclosure Schedule, (A) no portion of the real property owned,
operated or subject to any mortgage or security interest held by RCPI shall
have been used for the generation, storage, transportation or disposal, if
any, of Hazardous Materials and (B) no Hazardous Materials shall be present
in, on or under any portion of any such property except to the extent that any
such use or presence, individually and in the aggregate, would not have and
would not be reasonably likely to have a material adverse effect on the
physical or financial condition of the Property.
(ii) Except as set forth on Section 5.2(h)
of the RCPI Disclosure Schedule, RCPI and its Affiliates, and all portions
of the real property owned, operated or subject to any mortgage or security
interest held by RCPI or its Affiliates, (A) shall be in compliance with
all applicable Environmental Laws, (B) shall have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (C) shall be in compliance
with all terms and conditions of any such permit, license or approval,
except to the extent that any such noncompliance or failure to receive,
individually and in the aggregate, would not have and would not be
reasonably likely to have a material adverse effect on the physical or
financial condition of the Property.
(i) Conveyance of Property. Parent, Sub and each
Investor shall be reasonably satisfied that immediately after the Effective
Time (or such later time as shall be reasonably determined by Parent) (i)
the Property, (ii) all other real property (including leasehold interests)
owned by the Borrower and used in connection with the operation of the
Property consistent with past practices and (iii) all personal property
(including leasehold interests) owned by the Borrower and material to the
operation of the Property consistent with past practices will be conveyed
to the Surviving Company (or its designee approved by Parent) pursuant to
the Joint Plan for Borrower.
(j) No Taxes. Prior to the date on which the Proxy
Statement is first mailed to the stockholders of RCPI, Parent, Sub and each
Investor shall be reasonably satisfied that neither the Merger nor the
conveyance of the Property to the Surviving Company (or its designee
approved by Parent) will subject the Surviving Company (or its designee
approved by Parent) to any liabilities for transfer tax or gains tax under
the laws of the City of New York or the State of New York. Notwithstanding
any other provision of this Agreement to the contrary, this Section 5.2(j)
is intended to be the exclusive provision in this Agreement relating to any
liabilities for the taxes referred to in this Section 5.2(j) that may arise
from the Merger or the conveyance of the Property to the Surviving Company
(or its approved designee).
(k) Employee Benefits. Prior to the date on which the
Proxy Statement is first mailed to the stockholders of RCPI, Parent, Sub and
each Investor shall be reasonably satisfied that, following the consummation
of the transactions contemplated hereby, the Surviving Company will not have,
at or any time following the Effective Time, whether arising by operation of
law or otherwise, any direct or indirect, actual or contingent liability (as a
successor employer or otherwise) arising out or relating to the employment
(including the performance of services by any consultant) on or prior to the
Effective Time of any individual in connection with the operation of the
Property (whether or not employed by the Surviving Company at or following the
Effective Time), including, but not limited to, under any federal or state
labor or tax law, any employment, consulting, severance or other compensatory
agreement or arrangement, any collective bargaining agreement or any benefit
plan, practice or arrangement, whether such direct or indirect, actual or
contingent liability arises prior to, at the time of or following the
Effective Time.
Section 5.3 Conditions to the Obligations of RCPI. The
obligations of RCPI to consummate the transactions contemplated hereby are
subject to the satisfaction of the following conditions, the imposition of
which is solely for the benefit of RCPI and any one or more of which may be
expressly waived by RCPI, in its sole discretion, except as otherwise required
by law:
(a) Accuracy of Representations and Warranties. The
representations and warranties of Parent, Sub, GSMC and the Investors
contained herein shall have been true and correct in all material respects
when made, and shall be true and correct in all material respects at and as of
the Closing Date as though made on and as of the Closing Date (except to the
extent that any such representation and warranty had by its terms been made as
of a specific date, in which case such representation and warranty shall have
been true and correct in all material respects as of such specific date). For
purposes of this Section 5.3(a), the requirement that the representations and
warranties of Parent, Sub, GSMC and the Investors shall be true and correct in
"all material respects" is not intended to establish a different or higher
materiality standard with respect to any representation or warranty that is
already qualified by a materiality or a Material Adverse Effect standard by
the terms thereof. RCPI shall have received a certificate of Parent dated the
Closing Date and signed by an officer of Parent certifying, to the knowledge
of Parent, to the fulfillment of this condition.
(b) Performance of Agreements. Each of Parent, Sub,
GSMC and each of the Investors shall have performed in all material respects
all obligations and agreements and complied in all material respects with all
covenants and conditions contained in this Agreement to be performed and
complied with by it at or prior to the Closing Date, and RCPI shall have
received a certificate of Parent dated the Closing Date and signed by an
officer of Parent certifying, to the knowledge of Parent, the fulfillment of
this condition.
ARTICLE 6
TERMINATION
Section 6.1 Termination. This Agreement may be
terminated and the Merger contemplated hereby may be abandoned at any time
prior to the date on which the Proxy Statement is first mailed to the
stockholders of RCPI, in the case of Section 6.1(b)(ii), and at any time prior
to the Effective Time, whether before or after approval by the stockholders of
RCPI, in all other cases:
(a) by mutual written consent of Parent and RCPI;
(b) by Parent if (i) there has been a material breach of
any representation, warranty, covenant or agreement on the part of RCPI set
forth in this Agreement that, if not a willful breach, has not been cured
within 30 days following receipt by RCPI of notice of such breach from Parent
or (ii) the condition set forth in Section 5.2(j) or Section 5.2(k) shall not
have been satisfied prior to the date on which the Proxy Statement is first
mailed to the stockholders of RCPI;
(c) by RCPI if there has been a material breach of any
representation, warranty, covenant or agreement on the part of Parent, Sub,
GSMC or any Investor set forth in this Agreement that, if not a willful
breach, has not been cured within 30 days following receipt by Parent, Sub
or such Investor of notice of such breach from RCPI;
(d) by either Parent or RCPI, if the Merger shall not
have been consummated before March 31, 1996 (or such later date as may be
agreed to by Parent and RCPI), provided that neither party may terminate this
Agreement under this Section 6.1(d) if the failure has been caused by such
party's material breach of this Agreement;
(e) by either Parent or RCPI, if this Agreement shall
fail to receive the requisite vote for approval and adoption by the
stockholders of RCPI at the Stockholders' Meeting;
(f) by Parent, if (i) the Board of Directors of RCPI
shall withdraw, modify or change the Recommendation in a manner adverse to
Parent or shall have resolved to do any of the foregoing; (ii) the Board of
Directors of RCPI shall have recommended to the stockholders of RCPI, or
agreed to enter into, an Alternate Transaction; (iii) a tender offer or
exchange offer for shares of capital stock of RCPI that would result in the
beneficial ownership by any Person or any "group" (as defined in Section 13(d)
of the Exchange Act and the rules and regulations promulgated thereunder) of
more than 50% of the outstanding shares of any class of capital stock of RCPI
is commenced; or (iv) any Person shall have acquired beneficial ownership or
the right to acquire beneficial ownership of, or any "group" shall have been
formed that beneficially owns, or has the right to acquire "beneficial
ownership" of, more than 50% of the then-outstanding shares of any class of
capital stock of RCPI;
(g) by RCPI, prior to the occurrence of the vote of the
stockholders of RCPI with respect to this Agreement, if (i) RCPI has received
an Alternate Transaction Proposal that RCPI's Board of Directors determines in
good faith could be financially superior to the Merger, (ii) based on the
advice of outside legal counsel, RCPI's Board of Directors believes that it is
required to respond to and pursue such Alternate Transaction Proposal in order
to comply with its fiduciary obligations to holders of Common Stock under
applicable Law, and (iii) RCPI has entered into a definitive agreement to
consummate such Alternate Transaction Proposal; or
(h) by Parent or RCPI, if a court of competent
jurisdiction or other Governmental Entity shall have issued an order, decree
or ruling or taken any other action restraining, enjoining or otherwise
prohibiting the consummation of the Merger, and such order, decree, ruling or
other action shall have become final and nonappealable.
Section 6.2 Effect of Termination. If this Agreement is
terminated and the Merger abandoned pursuant to Section 6.1, all further
obligations of the parties hereunder shall terminate, except that the
obligations set forth in Sections 4.1(b), 4.1(c) and 4.4(b), this Section 6.2
and Section 7.5 shall survive; provided, however, if this Agreement is so
terminated by a party because one or more of the conditions to such party's
obligations hereunder is not satisfied as a result of the other party's
willful failure to comply with its obligations under this Agreement, the
terminating party's right to pursue all legal remedies for breach of contract
or otherwise, including, without limitation, damages relating thereto, shall
also survive such termination unimpaired.
ARTICLE 7
GENERAL PROVISIONS
Section 7.1 Certain Definitions. As used in
this Agreement, unless the context otherwise requires or unless another
meaning is specifically indicated, the following terms shall have the meanings
set forth in this Section:
"Affiliate" means, with respect to any Person, any
other Person that, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control
with, such first Person.
"Agent" means, with respect to any Person, such
Person's officers, directors, employees, fiduciaries, attorneys,
accountants, investment bankers, consultants or advisors or other
representatives or agents.
"Agreement" means this Agreement and Plan of Merger,
including all exhibits and schedules hereto, as it may be amended from time to
time.
"Alternate Transaction" means (i) whether pursuant to or
in the context of a proceeding in a Bankruptcy Court or otherwise, (A) a sale
of stock or other equity securities or a material portion of assets, tender
offer (including a self tender offer) or exchange offer, financing,
refinancing, recapitalization, restructuring, liquidation, dissolution,
reorganization, merger, consolidation, transfer, foreclosure, deed in lieu of
foreclosure or other business combination or similar transaction (or series of
transactions) involving RCPI, the Borrower, the Mortgage Note, the Mortgage or
the Property and involving or having a value of at least $50 million, in the
case of any issuance, repurchase or transfer of stock or other equity
securities of RCPI, or $100 million, in the case of any other transaction, or
(B) any other material corporate transaction whose consummation would
reasonably be expected to prevent or materially delay the Merger or (ii) a
confirmed plan of reorganization pursuant to Chapter 11 of the Bankruptcy Code
for RCPI or RCP or RCPA. It is understood and agreed that, without limiting
the generality of the foregoing, (x) a reinstatement, restructuring or "cram
down" pursuant to 11 U.S.C. Section 1129(b) of the Mortgage Note and the
Mortgage would constitute an Alternate Transaction and (y) the rights offering
to be effectuated pursuant to the Rights Offering Agreement would not
constitute an Alternate Transaction.
"Bankruptcy Code" means the Bankruptcy Code in Title 11
of the United States Code.
"Bankruptcy Court" means the applicable court presiding
over the Borrower Chapter 11 Case.
"Business Day" means any day on which the principal
offices of the SEC in Washington, D.C. are open to accept filings and other
than a day on which (i) banks in the State of New York are authorized or
required to be closed or (ii) the New York Stock Exchange, Inc. is closed.
"By-laws" means the By-laws of RCPI, as amended or
otherwise modified from time to time.
"Closing" means the consummation of the transactions
contemplated herein in accordance with Section 1.2.
"Code" means the United States Internal Revenue Code of
1986, as amended.
"Collateral Trust Agreement" means the Collateral Trust
Agreement, dated as of December 29, 1994, by and among RCPI and Bankers Trust
Company and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustees.
"Combination Agreement" means the Agreement and Plan of
Combination, dated as of September 11, 1995, between Equity Office Holdings,
L.L.C., a Delaware limited liability company, and RCPI.
"Contract" means any contract, lease, commitment,
understanding, sale, stipulation, order, purchase order, agreement, indenture,
mortgage, note, bond, right, warrant, instrument or plan, whether written or
oral.
"Debt" of any Person means, without duplication, (i) all
indebtedness of such Person for borrowed money; (ii) all obligations of such
Person evidenced by notes, bonds, debentures or other similar instruments;
(iii) all obligations of such Person as lessee under leases that have been or
should be, in accordance with GAAP, recorded as capital leases; (iv) all
obligations, contingent or otherwise, of such Person under acceptance, letter
of credit or similar facilities; (v) all Debt of others referred to in clauses
(i) through (iv) above guaranteed directly or indirectly in any manner by such
Person; and (vi) all Debt of others referred to in clauses (i) through (v)
above secured by (or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including,
without limitation, accounts and contract rights) owned by such Person, even
though such Person has not assumed or become liable for the payment of such
Debt.
"December 1994 Letter" means the letter agreement, dated
December 18, 1994, among GS, Whitehall and RCPI.
"Environmental Laws" means all Laws relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"GAAP" means generally accepted accounting principles in
the United States at the time in effect.
"Goldman Loan Agreement" means the Loan Agreement between
RCPI, the lender parties thereto and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, as Agent,
dated as of December 18, 1994.
"Governmental Entity" means the government of the United
States or any foreign country or any state or political subdivision thereof
and any entity, body or authority exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including quasi-governmental entities established to perform such functions.
"Hazardous Materials" includes, without limitation, any
hazardous substance, pollutant or contaminant regulated under the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601, et seq., as amended by the Superfund Amendments and
Reauthorization Act, and the Emergency Planning and Community Right-to-Know
Act; oil and petroleum products and natural gas, natural gas liquids,
liquefied natural gas, and synthetic gas usable for fuel; pesticides regulated
under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
Section 2601 et seq.; asbestos, polychlorinated biphenyls, and other
substances regulated under the Toxic Substance Control Act, 15 U.S.C. Section
2601 et seq; source material, special nuclear material, and by-product
materials regulated under the Atomic Energy Act; and industrial process and
pollution control wastes to the extent regulated under applicable
Environmental Laws.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended, and the rules and regulations
promulgated thereunder.
"Investment Agreement" means the Investment Agreement,
dated as of August 18, 1995, between RCPI and ▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate
Opportunity Partners Limited Partnership III.
"knowledge" of any Person means actual knowledge of a
responsible officer of such person, and, unless otherwise specified, without
inquiry having been made by such Person or such officer of such Person.
"Law" means any law, statute, regulation, ordinance,
rule, order, decree, judgment, consent decree, settlement agreement or
governmental requirement enacted, promulgated, entered into, agreed or imposed
by any Governmental Entity.
"Lien" means any mortgage, lien (except for any lien for
taxes not yet due and payable), charge, restriction, pledge, security
interest, option, lease or sublease, easement, encroachment or encumbrance.
"Loan Documents" means the "Loan Documents" as defined in
the Goldman Loan Agreement.
"Loss" or "Losses" means any and all liabilities, losses,
costs, claims, damages, penalties and expenses (including, without limitation,
attorneys' fees and expenses and costs of investigation and litigation).
"Material Adverse Effect" means, with respect to any
Person, any effect that is or is reasonably likely to be materially adverse to
the financial condition of such Person and its Subsidiaries taken as a whole.
"Mortgage" means, collectively, (i) the Mortgage and
Security Agreement, dated as of September 19, 1985, by RCPA and RCP to RCPI,
(ii) the Consolidation, Extension, Modification and Spreader Agreement, dated
as of September 19, 1985, among RCPA, RCP and RCPI, recorded with the City
Register of the City of New York, and (iii) the Assignment of Rents, dated as
of September 19, 1985, by RCPA and RCP to RCPI, recorded with the City
Register of the City of New York, each as amended from time to time.
"Mortgage Note" means, collectively, the Mortgage Note,
dated as of September 19, 1985, in the amount of $1,255,160,004, in favor of
RCPI and the Consolidated Mortgage Note, dated as of September 19, 1985, in
the amount of $44,839,996, each as amended from time to time.
"1985 Loan Agreement" means the Loan Agreement, dated as
of September 19, 1985, among RCPI, RCPA and RCP, as amended from time to time.
"P&S Disclosure Schedule" means the disclosure schedule
delivered to RCPI by Parent and Sub concurrently with the execution of this
Agreement.
"Permitted Liens" means (i) all exceptions to title to
the Mortgage set forth in the Title Insurance; (ii) Liens created in
connection with the Goldman Loan Agreement or the "Loan Documents" as defined
therein, including Liens created to secure loans contemplated by Section
4.4(b) hereof; (iii) all nondisturbance agreements set forth on Section
3.1(c)(iii) of the RCPI Disclosure Schedule, and all other nondisturbance
agreements hereafter entered into by RCPI in accordance with the terms of this
Agreement; (iv) Liens created pursuant to the terms of this Agreement; (v)
Liens for taxes not yet due or as otherwise provided in clause (xiii) below;
(vi) easements, rights-of-way, restrictive covenants and concourse, subway and
franchise agreements of record as set forth on Schedule B-1 to the Title
Report of Ticor Title Insurance Company and Ticor Title Guarantee Company No.
4193-00483 dated October 10, 1995 ("Title Report"), but no other matters set
forth in the Title Report other than as covered by clause (i) above or
provided for in clause (vii) below; (vii) Liens (other than those described in
clause (viii) below) in respect of property imposed by law arising in the
ordinary conduct of business, such as materialmen's, mechanics',
warehousemen's and other like Liens, which are set forth in the Title Report
and the disposition of which (whether by payment, cancellation or otherwise)
is provided for in the Joint Plan for Borrower or an Alternative Chapter 11
Plan provided in Section 5.2(e) (the "Approved Plan"); (viii) mechanics',
materialmen's and similar Liens filed by reason of work performed by or on
behalf of tenants of space in the Property if (A) under the terms of the
leases of such tenants, such tenants are obligated to remove and discharge
such Liens and to pay for the work that gives rise to such Liens (whether or
not such tenants are entitled to an allowance or other reimbursement from
their landlord) and (B) the disposition of such Liens (whether by payment,
cancellation or otherwise) is provided for in the Approved Plan; (ix) unpaid
water charges, sewer rents and vault charges, the disposition of which is
provided for in the Approved Plan; (x) leases or subleases granted to others
(under which RCP or RCPA is the landlord or sublandlord, as applicable)
existing as of the date hereof and those hereafter entered into which are
approved pursuant to this Agreement and/or by the Bankruptcy Court; (xi) any
Lien approved by the Bankruptcy Court in the Borrower's Chapter 11 Case,
including any Lien securing debtor-in-possession financing permitted under
Section 4.2(b)(Q), which is to be paid in full under the terms of the Approved
Plan; (xii) the Mortgage; and (xiii) any other Liens (including, but not
limited to, Liens for taxes and Liens in respect of property imposed by law
arising in the ordinary conduct of business such as materialmen's, mechanic's,
warehousemen's and other like Liens), the disposition (whether by payment,
cancellation or otherwise) of which is provided for in the Approved Plan or is
otherwise approved by Parent; provided, however, that when used in respect of
the Mortgage, as opposed to the Property, "Permitted Liens" shall mean only
those matters set forth in this definition which are paramount and superior to
the lien of the Mortgage.
"Permitted Litigations" means (i) the pending, threatened
and potential litigation described on Section 3.1(h) of the RCPI Disclosure
Schedule, (ii) any derivative or class action suit not described on Section
3.1(h) of the RCPI Disclosure Schedule alleging a breach by the Board of
Directors of RCPI of its fiduciary duty to stockholders in connection with a
significant corporate transaction; provided that the suits contemplated by
this clause (ii) would not, individually and in the aggregate, have a Material
Adverse Effect on RCPI and (iii) litigations arising after the date hereof to
which RCPI is a party, in the ordinary course of business, involving property,
personal injury or contract claims that will not result in any material
recovery that is not covered by insurance.
"Person" means any individual, corporation, partnership,
firm, group (as such term is used in Section 13(d)(3) of the Exchange Act),
joint venture, association, trust, limited liability company, unincorporated
organization, estate, trust or other entity.
"Property" shall mean the real and personal property
covered by the Mortgage.
"Proxy Statement" means the proxy statement filed with
the SEC by RCPI in connection with the Stockholders' Meeting, including any
amendments thereto.
"Purchase Option" means the Purchase Option, dated as of
September 19, 1985, among RCPA, RCP and RCPI, as amended.
"RCPI Disclosure Schedule" means the disclosure schedule
delivered to Parent and Sub by RCPI concurrently with the execution of this
Agreement.
"RCPI Indenture" means the Indenture, dated as of
September 15, 1985, between RCPI and Manufacturers Hanover Trust Company, as
amended.
"Regulation G, T, U or X" shall mean, respectively,
Regulation G, T, U and X of the Board of Governors of the Federal Reserve
System as from time to time in effect and any successor to all or a portion
thereof.
"Restated Certificate of Incorporation" means the
Restated Certificate of Incorporation of RCPI, as amended.
"Rights Offering Agreement" means the letter agreement,
dated the date hereof, between RCPI, GS and Whitehall relating to the
effectuation of a rights offering in the event that the stockholders of RCPI
do not approve this Agreement, as amended from time to time.
"SARs" means the stock appreciation rights issued
pursuant to the Stock Appreciation Rights Agreement.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Stock Appreciation Rights Agreement" means the Stock
Appreciation Rights Agreement, dated December 18, 1994, between RCPI and
Chemical Bank, as amended.
"Subsidiary" of any Person means any corporation,
partnership, joint venture or other legal entity of which such Person (either
directly or through or together with any other Subsidiary of such Person),
owns, directly or indirectly, 50% or more of the stock or other equity
interests the holders of which are generally entitled to vote for the election
of the board of directors or similar governing body of such corporation,
partnership, joint venture or other legal entity.
"Taxes" means federal, state, county, local, foreign and
other taxes (including, without limitation, income, profits, premium,
estimated, excise, sales, use, occupancy, gross receipts, franchise, ad
valorem, severance, capital levy, production, transfer, withholding,
employment, unemployment compensation, payroll related, property, real
property transfer and real property gains taxes, import duties and other
governmental charges and assessments), whether or not measured or based in
whole or in part by net income, and including deficiencies, interest,
additions to tax or interest, and penalties with respect thereto, and
including expenses associated with contesting any proposed adjustment related
to any of the foregoing.
"Tax Return" means any report, return or other
information required to be supplied to a Governmental Entity in connection
with any Taxes.
"Title Insurance" means (i) the title insurance policy
set forth in Schedule III to the Collateral Trust Agreement and (ii) the title
insurance policy described in the Letter Agreement dated as of December 29,
1994 regarding the assignment by RCPI of its title insurance benefits to the
Trustees referred to in clause (i) above.
"Warrant Agreement" means the Warrant Agreement dated
December 18, 1994 between RCPI and Chemical Bank, as amended.
"Warrants" means the warrants for the purchase of shares
of Common Stock issued pursuant to the Warrant Agreement.
Section 7.2 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally, upon receipt of a transmittal confirmation if sent by facsimile or
like transmission and on the next Business Day when sent by Federal Express,
Express Mail or similar overnight courier service to the parties at the
following addresses or facsimile numbers (or at such other address or
facsimile number for a party as shall be specified by like notice):
(a) If to RCPI, to:
Rockefeller Center Property, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Parent or Sub, to:
Whitehall Street Real Estate
Limited Partnership V
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Each of the Investors and their respective counsel
at the addresses set forth in paragraphs (c) - (g)
below:
(c) If to Whitehall, to:
Whitehall Street Real Estate
Limited Partnership V
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(d) If to Rockprop, to:
Tishman Speyer Properties, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(e) If to Rockefeller, to:
Spears, Benzak, Salomon & ▇▇▇▇▇▇▇, Inc.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(f) If to Exor, to:
Exor Group S.A.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ CH804-1
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 011-41-1-262-4212
with a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(g) If to Troutlet, to:
Troutlet Investments Corporation
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇ de la ▇▇▇▇▇
▇▇▇▇▇ Carlo M.C. 98000
MONACO
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile: 011-33-93-301-672
with copies to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Squire ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 7.3 Interpretation. When a reference is made in
this Agreement to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Whenever
the words "include," "includes" or "including" are used in this Agreement,
they shall be deemed to be followed by the words "without limitation." The
phrases "the date of this Agreement," "the date hereof" and terms of similar
import, unless the context otherwise requires, shall be deemed to refer to
November 7, 1995. Dollar amounts referred to in this Agreement shall not be
deemed to establish any standard of materiality.
Section 7.4 Waivers and Amendments. This Agreement may be
amended, superseded, canceled, renewed or extended, and the terms hereof may
be waived, only by written instruments signed by the parties to this
Agreement, or in the case of a waiver, by the party waiving compliance.
Except where a specific period for action or inaction is provided herein, no
delay on the part of a party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof. Neither any waiver on the part
of a party of any such right, power or privilege, nor any single or partial
exercise of any such right, power or privilege, shall preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
Section 7.5 Expenses and Other Payments.
(a) Except as otherwise specifically provided herein,
the parties to this Agreement shall bear their respective expenses incurred in
connection with the preparation, execution and performance of this Agreement
and the transactions contemplated hereby, including, without limitation, all
fees and expenses of their respective Agents.
(b) RCPI agrees that if this Agreement shall be
terminated pursuant to:
(i) Section 6.1(b)(i), 6.1(f) or 6.1(g) and
within 30 months after the date on which this Agreement is terminated RCPI
shall consummate an Alternate Transaction; or
(ii) Section 6.1(d) (if (x) each of Parent,
Sub, GSMC and each of the Investors is not in material breach of any
covenant, representation or warranty; (y) each of Parent, Sub and each of
the Investors is ready, willing and able to consummate the Merger; and (z)
each of Parent, Sub, GSMC and each of the Investors has satisfied in all
material respects the conditions set forth in Section 5.3 applicable to it)
or 6.1(e) and (A) at the time this Agreement is terminated there shall
exist an Alternate Transaction Proposal or any Person shall have publicly
announced its intention to make an Alternate Transaction Proposal and (B)
within 30 months after the date on which this Agreement is terminated RCPI
shall consummate an Alternate Transaction;
then RCPI shall pay to Parent an amount equal to $6.5 million less any amounts
paid to Parent pursuant to Section 7.5(c).
(c) RCPI agrees that if this Agreement shall be
terminated pursuant to Section 6.1(e), then RCPI shall pay to Parent an amount
equal to $2.925 million.
(d) In addition, RCPI agrees that if this Agreement
shall be terminated pursuant to Section 6.1 (other than Section 6.1(c)), then
RCPI shall pay to Parent all expenses up to an aggregate amount of $2.5
million incurred by Parent, Sub and the Investors in connection with the
preparation, execution and performance of this Agreement and the transactions
contemplated hereby, including, without limitation, all fees and expenses of
their respective Agents.
(e) Any payment required to be made pursuant to Section
7.5(b) shall be made concurrently with the consummation of the applicable
Alternate Transaction, and any payment required to be made pursuant to Section
7.5(c) or (d) shall be made promptly following any termination to which
Section 7.5(c) or (d), as the case may be, applies.
Section 7.6 Assignment. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party and any such assignment made without such
consent shall be void and of no effect; provided that each of Parent and Sub
shall have the right to assign its rights, interests and obligations hereunder
to one or more entities (each a "New Entity") which shall be formed,
capitalized and owned by the Investors, and upon such assignment, the parties
shall amend this Agreement to provide (a) that, at the election of the
Investors, a New Entity (and not RCPI) shall be the Surviving Company of the
Merger and (b) for such other modifications to the terms hereof as shall be
necessary to reflect the revised structure (it being understood that any such
amendment shall not affect the Merger Consideration or any other economic
terms of this Agreement); provided further that any Investor may assign any of
its rights, interests or obligations hereunder to any of its Affiliates so
long as (i) any such Affiliate assignee enters into an agreement by which it
agrees to become a party to, and be bound by the terms of, this Agreement and
(ii) the Investor making such an assignment is not relieved of its obligations
under this Agreement.
Section 7.7 Directors' and Officers' Insurance; Indemnity.
(a) For a period of six years after the Effective Time, the Surviving Company
shall maintain in effect policies of directors' and officers' liability
insurance in substantially the same form with substantially the same terms and
conditions as contained in RCPI's current policies of directors' and officers'
liability insurance in an amount not less than the amount currently maintained
by RCPI with respect to claims arising from facts or events that occurred
prior to the Effective Time; provided that such insurance is available on
commercially reasonable terms.
(b) Subsequent to the Closing, Parent shall cause the
Surviving Company to indemnify and hold harmless each present and former
director, officer, employee, fiduciary and agent of RCPI (collectively, the
"Special Indemnified Parties") against all losses in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to any action
or omission in their capacity as director or officer occurring before the
Closing, whether asserted or claimed prior to, at or after the Closing
Date, for a period of six years after the Closing Date in each case to the
fullest extent permitted under applicable law (and shall pay any expenses
in advance of the final disposition of such action or proceeding to each
Special Indemnified Party to the fullest extent permitted under applicable
law, upon receipt from the Special Indemnified Party to whom expenses are
advanced of an undertaking to repay such advances as required under
applicable law). In the event of any such claim, action, suit, proceeding
or investigation, the Surviving Company, at its expense, shall have the
right to defend such claim, action, suit, proceeding or investigation,
unless there is, as determined by counsel to the Surviving Company, a
conflict or reasonable likelihood of a conflict such that the
representation of one or more of the Special Indemnified Parties would be
impermissible under applicable standards of professional conduct, in which
case, or in the case that the Surviving Company elects not to defend such
claim, suit, proceeding or investigation, then the Surviving Company shall
pay the reasonable fees and expenses of one counsel selected by the Special
Indemnified Parties, which counsel shall be reasonably satisfactory to the
Surviving Company, promptly after statements therefor are received and the
Surviving Company shall cooperate in the defense of any such matter;
provided, however, that, if any claim for indemnification is asserted or
made within such six-year period, all rights to indemnification in respect
of such claim shall continue until the disposition of such claim. For the
purposes solely of this Section 7.7(b), the corporate law of the State of
Delaware shall be assumed to be the "applicable law" referred to in this
Section 7.7(b).
(c) For a period of six years after the Effective Time,
the Surviving Company shall not amend or otherwise modify Article SEVENTH of
its Amended and Restated Certificate of Incorporation or otherwise amend or
modify its Amended and Restated Certificate of Incorporation to the extent
that such amendment or modification would restrict the Surviving Company's
ability to fulfill its obligations under Section 7.7(b).
(d) In the event the Surviving Company or any of its
respective successors or assigns (i) consolidates with or merges into any
other Person and shall not be the continuing or surviving corporation or
entity of such consolidation or merger or (ii) transfers all or substantially
all of its properties and assets to any Person, then, and in each such case,
provision shall be made so that the successors and assigns of the Surviving
Company shall assume the obligations set forth in this Section 7.7.
Section 7.8 Non-Survival of Representations and Warranties.
The representations and warranties made in this Agreement or in any instrument
delivered pursuant to this Agreement shall not survive the Effective Time.
Section 7.9 Entire Agreement; No Third Party Beneficiaries.
This Agreement (including the documents and the instruments referred to
herein) (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof (it being understood that except as
expressly provided herein, this Agreement shall not affect the Goldman Loan
Agreement, the Warrant Agreement, the Stock Appreciation Rights Agreement, the
documents executed in connection therewith or the Rights Offering Agreement)
and (b) is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder (except as provided in Section 7.7).
Section 7.10 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(other than its rules of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby); provided,
however, that with respect to matters of corporate law, the DGCL shall govern.
Section 7.11 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be an original and all of
which, when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has signed or caused
this Agreement to be signed as of the date first above written.
ROCKEFELLER CENTER PROPERTIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President
RCPI HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
RCPI MERGER INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: W.H. Advisors L.P. V,
General Partner
By: WH Advisors, Inc. V,
General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
ROCKPROP, L.L.C.
By: Tishman Speyer Crown Equities
its Managing Member
By: Tishman Speyer Associates Limited
Partnership, General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
By: TSE Limited Partnership, General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: General Partner
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
______________________*
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
_________
* By ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Attorney-In-Fact
EXOR GROUP S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Attorey-In-Fact
TROUTLET INVESTMENTS CORPORATION
By: /s/ Squire ▇. ▇▇▇▇▇▇▇
_________________________________
Name: Squire ▇. ▇▇▇▇▇▇▇
Title: Attorey-In-Fact
For Purposes of Sections 3.2, 4.1(a), 4.1(b),
4.3(a) and 4.4(b) only:
▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President of ▇▇▇▇▇▇▇ ▇▇▇▇▇
Real Estate Funding Corp.,
General Partner
SCHEDULE A
ROCKEFELLER CENTER PROPERTIES, INC.
Projected Cash Flow Requirements
(in millions)
Projected REIT Cash Flow (1)
1995 1996
Sept. Oct. Nov. Dec. Jan. Feb. Mar. TOTAL
------ ------- -------- ------- ------- ------- -------- -------
Cash Sources
------------
Cash Beginning Balance $ 16.4 $ 13.3 $ 34.6 $ 24.6 $ 6.6 $ 5.0 $ 16.4
Estimated Interest Income 0.1 0.1 0.1 - 0.0 0.0 0.3
GSMC Loan (2) 33.0 - 12.0 - - 45.0
-------- ------- ------- ------- -------- -------
$ 16.5 $ 46.3 $ 34.7 $ 36.6 $ 6.6 $ 5.0 $ 61.7
Cash Requirements
-----------------
Interest Expense
Current Coupon Convertible Debentures (3) $ - $ - $ - $ 27.7 $ - $ - $ 27.7
Zero Coupon Convertible Debentures - - - - - - -
Floating Rate Notes - - 2.9 - - 2.9 5.8
14% Debentures - - 5.4 - - - 5.4
Working Capital - - - - - - -
------- -------- ------- ------- ------- -------- -------
Total Interest Expense $ - $ - $ 8.3 $ 27.7 $ - $ 2.9 $ 38.9
Total G&A Expenses 2.4 1.6 1.9 1.7 1.7 1.7 10.8
Swap Expenses 0.8 - - 0.6 - 0.4 1.8
Repayment of Unsecured Debt (2) - 10.2 - - - - 10.2
------- -------- ------- ------- ------- -------- -------
Total Cash Requirements $ 3.2 $ 11.8 $ 10.1 $ 30.0 $ 1.7 $ 5.0 $ 61.7
Ending Cash Balance (Deficit) (4) $ 16.4 $ 13.3 $ 34.6 $ 24.6 $ 6.6 $ 5.0 $ 0.0 $ 0.0
(1) All numbers have been rounded to the nearest $100,000.
(2) Assumes concurrent funding of GSMC Loan and termination of Investment
Agreement on November 10, 1995.
(3) Interest payment on the Current Coupon Convertible Debentures
scheduled for December 31, 1995 is payable on January 2, 1996.
(4) Assumes waiver of the net cash flow sweep and interest reserve
requirements upon signing of the Merger Agreement.
Schedule B
Maximum Permitted RCPI Liabilities
as of December 31, 1995
----------------------------------
Outstanding Debt: (1)
Current Coupon Convertible Debentures $213,170,000
Zero Coupon Convertible Debentures 360,283,410
Floating Rate Notes 117,285,234
GSMC Loan (2) 33,467,500
14% Debentures 75,787,500
------------
Total Outstanding Debt $799,993,644
Other Liabilities:
Swaps (3) 10,000,000
Transaction Costs (4) 8,000,000
Liquidation Expenses and Other
Liabilities (see Attachment 1) 5,588,196
▇▇▇▇ Breakup Fee and Related
Expenses (5) 11,575,000
------------
Total Other Liabilities(6) $ 35,163,196
Total Liabilities $835,156,840
(1) Includes accrued interest, except in the case of the Current Coupon
Convertible Debentures which is payable on January 2, 1996.
(2) Assumes 10% per annum fixed rate interest accrual, compounded
quarterly.
(3) Subject to adjustment to reflect changes in interest rates following
the date of this Agreement.
(4) Includes only professional fees to PaineWebber, Weil, Gotshal &
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Sterling, and expense liabilities payable to GS,
GSMC and Whitehall under existing agreements. This amount will be
increased by the amount, if any, by which the expense liabilities
payable to GS, GSMC and Whitehall under existing agreements exceed
$750,000.
(5) Such amount shall be increased by the interest accrued from the 90th
day after termination of the Combination Agreement on a portion of
such amount equal to $9,575,000 at 8% per annum, compounded
semiannually.
(6) Such liabilities do not include Property-related bankruptcy costs and
expenses of the Borrower to be assumed by RCPI pursuant to Section
5.2(e) hereof.
Attachment 1
Other Liabilities
_________________
(Amounts estimated as of December 31, 1995)
All Permitted Litigation and any expenses incurred by RCPI in connection
therewith and any indemnity payments due from RCPI to its officers and
directors in connection therewith.
Audit Fees $ 150,000
Property Appraisal 150,000
Investor Relations Consulting 150,000
Consulting Fees 20,000
Office space lease (future cash rent
to the end of the lease) 770,000
Tax Return Preparation Fees 10,000
Directors' Fees and Expenses 5,000
Property Inspection 7,500
Registrar and Transfer Agent Fees 35,000
Dividend Reinvestment Plan 2,000
Investor Communications 50,000
Taxes 2,500
Data Processing 5,000
Travel and Reimbursable Expenses 3,000
Telephone Service 3,000
Miscellaneous 127,000
Office Equipment Leases 26,100
▇▇▇▇▇ Filings -- ▇▇▇▇▇▇▇ Corporation 25,000
Payroll -- Salaries 20,745
Payroll -- Taxes 19,702
Payroll -- Incentive Savings Plan 3,166
Contractual Severance Pay 1,602,000
Contractual Severance Benefits 152,429
Retirement Plan 513,000
Directors' and officers' insurance 1,736,054
----------
Total $5,588,196
EXHIBIT A
FORM OF
CERTIFICATE OF INCORPORATION
OF
[THE SURVIVING COMPANY]
1. Name. The name of the corporation is [Name] (the
"Corporation").
2. Address; Registered Office and Agent. The address of the
Corporation's registered office is ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ of Kent, State of Delaware; and its registered agent at such
address is The ▇▇▇▇▇▇▇▇-▇▇▇▇ Corporation System, Inc.
3. Purposes. The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law.
4. Number of Shares. The total number of shares of stock that
the Corporation shall have authority to issue is: One thousand (1,000),
all of which shall be shares of Common Stock of the par value of one cent
($.01) each.
5. Election of Directors. The number of directors shall be as
from time to time fixed by, or in the manner provided in, the By-laws of the
Corporation. Members of the Board of Directors of the Corporation (the
"Board") may be elected either by written ballot or by voice vote.
6. Limitation of Liability. No director of the Corporation shall
be personally liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that this
provision shall not eliminate or limit the liability of a director (a) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under section 174 of
the General Corporation Law or (d) for any transaction from which the director
derived any improper personal benefits.
Any repeal or modification of the foregoing provision shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
7. Indemnification.
7.1 To the extent not prohibited by law, the Corporation
shall indemnify any person who is or was made, or threatened to be made, a
party to any threatened, pending or completed action, suit or proceeding (a
"Proceeding"), whether civil, criminal, administrative or investigative,
including, without limitation, an action by or in the right of the Corporation
to procure a judgment in its favor, by reason of the fact that such person, or
a person of whom such person is the legal representative, is or was a director
or officer of the Corporation or its predecessor, or at the request of the
Corporation or its predecessor, is or was serving as a director or officer of
any other corporation or in a capacity with comparable authority or
responsibilities for any partnership, joint venture, trust, employee benefit
plan or other enterprise (an "Other Entity"), against judgments, fines,
penalties, excise taxes, amounts paid in settlement and costs, charges and
expenses (including, without limitation, attorneys' fees, disbursements and
other charges). Persons who are not directors or officers of the Corporation
or its predecessor (or otherwise entitled to indemnification pursuant to the
preceding sentence) may be similarly indemnified in respect of service to the
Corporation or its predecessor or to an Other Entity at the request of the
Corporation or its predecessor to the extent the Board at any time specifies
that such persons are entitled to the benefits of this Section 7.
7.2 The Corporation shall, from time to time, reimburse or
advance to any director or officer or other person entitled to indemnification
hereunder the funds necessary for payment of expenses, including attorneys'
fees and disbursements, incurred in connection with any Proceeding, in advance
of the final disposition of such Proceeding; provided, however, that, if
required by the General Corporation Law, such expenses incurred by or on
behalf of any director or officer or other person may be paid in advance of
the final disposition of a Proceeding only upon receipt by the Corporation of
an undertaking, by or on behalf of such director or officer (or other person
indemnified hereunder), to repay any such amount so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right of appeal that such director, officer or other person is not
entitled to be indemnified for such expenses.
7.3 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall not be deemed exclusive of any other rights to which a person seeking
indemnification or reimbursement or advancement of expenses may have or
hereafter be entitled under any statute, this Certificate of Incorporation,
the By-laws of the Corporation (the "By-laws"), any agreement, any vote of
stockholders or disinterested directors or otherwise, both as to action in his
or her official capacity and as to action in another capacity while holding
such office.
7.4 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall continue as to a person who has ceased to be a director or officer (or
other person indemnified hereunder) and shall inure to the benefit of the
executors, administrators, legatees and distributees of such person.
7.5 The Corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of an Other Entity,
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether
or not the Corporation would have the power to indemnify such person against
such liability under the provisions of this Section 7, the By-laws or under
section 145 of the General Corporation Law or any other provision of law.
7.6 The provisions of this Section 7 shall be a contract
between the Corporation, on the one hand, and each director and officer who
serves in such capacity at any time while this Section 7 is in effect and any
other person entitled to indemnification hereunder, on the other hand,
pursuant to which the Corporation and each such director, officer, or other
person intend to be, and shall be, legally bound. No repeal or modification
of this Section 7 shall affect any rights or obligations with respect to any
state of facts then or theretofore existing or thereafter arising or any
proceeding theretofore or thereafter brought or threatened based in whole or
in part upon any such state of facts.
7.7 The rights to indemnification and reimbursement or
advancement of expenses provided by, or granted pursuant to, this Section 7
shall be enforceable by any person entitled to such indemnification or
reimbursement or advancement of expenses in any court of competent
jurisdiction. The burden of proving that such indemnification or
reimbursement or advancement of expenses is not appropriate shall be on the
Corporation. Neither the failure of the Corporation (including its Board, its
independent legal counsel and its stockholders) to have made a determination
prior to the commencement of such action that such indemnification or
reimbursement or advancement of expenses is proper in the circumstances nor an
actual determination by the Corporation (including its Board, its independent
legal counsel and its stockholders) that such person is not entitled to such
indemnification or reimbursement or advancement of expenses shall constitute a
defense to the action or create a presumption that such person is not so
entitled. Such a person shall also be indemnified for any expenses incurred
in connection with successfully establishing his or her right to such
indemnification or reimbursement or advancement of expenses, in whole or in
part, in any such proceeding.
7.8 Any director or officer of the Corporation serving in any
capacity (a) another corporation of which a majority of the shares entitled to
vote in the election of its directors is held, directly or indirectly, by the
Corporation or (b) any employee benefit plan of the Corporation or any
corporation referred to in clause (a) shall be deemed to be doing so at the
request of the Corporation.
7.9 Any person entitled to be indemnified or to
reimbursement or advancement of expenses as a matter of right pursuant to
this Section 7 may elect to have the right to indemnification or
reimbursement or advancement of expenses interpreted on the basis of the
applicable law in effect at the time of the occurrence of the event or
events giving rise to the applicable Proceeding, to the extent permitted by
law, or on the basis of the applicable law in effect at the time such
indemnification or reimbursement or advancement of expenses is sought.
Such election shall be made, by a notice in writing to the Corporation, at
the time indemnification or reimbursement or advancement of expenses is
sought; provided, however, that if no such notice is given, the right to
indemnification or reimbursement or advancement of expenses shall be
determined by the law in effect at the time indemnification or
reimbursement or advancement of expenses is sought.
8. Adoption, Amendment and/or Repeal of By-Laws. The Board may
from time to time adopt, amend or repeal the By-laws of the Corporation;
provided, however, that any By-laws adopted or amended by the Board may be
amended or repealed, and any By-laws may be adopted, by the stockholders of
the Corporation by vote of a majority of the holders of shares of stock of
the Corporation entitled to vote in the election of directors of the
Corporation.
EXHIBIT B
FORM OF RELEASE
RELEASE, dated as of November __, 1995, made by
[RCPI][Investor][GSMC][GS] (together with its predecessors, successors and
assigns, the "Releasor") in favor of each of the Released Parties (as defined
herein).
This Release is being executed and delivered pursuant to Section
[4.2(j)] [4.3(a)] of the Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), among Rockefeller Center Properties, Inc., a
Delaware corporation, RCPI Holdings Inc., a Delaware corporation, RCPI Merger
Inc., a Delaware corporation and a wholly owned subsidiary of RCPI Holdings
Inc., and the Investors named therein. Capitalized terms used but otherwise
not defined herein shall have the meanings ascribed to such terms in the
Merger Agreement.
The Releasor does hereby release and forever discharge (on behalf of
itself and its Affiliates) the Released Parties from any and all actions,
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, obligations, variances, trespasses, damages, judgments, extents,
executions, claims, counterclaims and demands of any kind relating to RCPI
(collectively, "Claims"), whether in law, admiralty, or equity, that the
Releasor or any of its Affiliates ever had, now has, or hereafter can, shall,
or may have, for, upon, or by reason of any matter, cause, or thing from the
beginning of the world until the execution of this Release arising from or
relating to (a) any breach of contract by any Released Party, but only if such
breach occurred prior to the date of this Release, or (b) to the extent not
arising out of a breach of contract, actions or omissions of any Released
Party with respect to the Releasor or any of its Affiliates, but only if such
actions or omissions occurred prior to the date of this Release. For purposes
of this Release, the term "Released Parties" means [RCPI] [each of GSMC, GS
and each of the Investors] and its Affiliates and Agents (each in its capacity
as such) and their respective predecessors, successors and assigns.
Notwithstanding anything to the contrary herein, the Releasor does
not hereby release any Released Party from the performance of any continuing
obligation that such Released Party has under or relating to any agreement,
arrangement or understanding (whether oral or written) whose terms provide
that the beneficiary of any such obligation is the Releasor or any of its
Affiliates, including, without limitation, the Merger Agreement, the Loan
Documents and any other agreements executed in connection with the Loan
Documents, and the Releasor does not hereby release any Released Party from
any Claims arising from and after the execution hereof relating to such
Released Party's performance of any such obligations.
This Release is not intended to confer upon any person other than
each of the Released Parties any rights or remedies hereunder.
This Release shall be governed by and construed in accordance with
the laws of the State of New York (other than its rules of conflicts of law to
the extent the application of the laws of another jurisdiction would be
required thereby).
IN WITNESS WHEREOF, the Releasor has caused this Release to be signed
by its officer thereto duly authorized as of the date first above written.
[RELEASOR]
By:___________________
Name:
Title:
EXHIBIT C
Investor Commitments
Investor Commitment
-------- ----------
Whitehall Street Real Estate
Limited Partnership V $134,031,880
Rockprop, L.L.C. $ 15,639,686
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ $ 15,639,686
Exor Group S.A. $ 70,387,190
Troutlet Investments Corporation $ 70,387,190